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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended: June 30, 1995
Commission File Number: 1-8968
_____________________
ANADARKO PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 76-0146568
(State of incorporation) (I.R.S. Employer
Identification No.)
17001 NORTHCHASE DRIVE, HOUSTON, TEXAS 77060
(Address of executive offices)
(713) 875-1101
(Registrant's telephone number)
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
The number of shares outstanding of each of the registrant's classes of
common stock as of July 31, 1995 is shown below:
Number of Shares
Title of Class Outstanding
Common Stock, $0.10 par value 58,923,759
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<PAGE>
<PAGE> PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
Three Months Ended Six Months Ended
June 30 June 30
thousands 1995 1994 1995 1994
Revenues
Gas sales $ 69,323 $ 77,435 $127,855 $176,436
Oil and condensate sales 34,434 33,167 65,387 59,182
Natural gas liquids and other 10,133 10,460 23,475 19,073
Total 113,890 121,062 216,717 254,691
Costs and Expenses
Operating expenses 24,712 28,797 52,166 55,706
Administrative and general 14,832 15,504 28,922 29,883
Depreciation, depletion and
amortization 42,130 42,978 78,834 90,683
Other taxes 9,970 10,954 20,186 21,787
Total 91,644 98,233 180,108 198,059
Operating Income 22,246 22,829 36,609 56,632
Other Income 213 943 272 1,175
Gross Income 22,459 23,772 36,881 57,807
Interest Expense 9,012 6,703 17,024 13,717
Income before Income Taxes 13,447 17,069 19,857 44,090
Income Taxes 4,394 5,386 6,724 15,345
Net Income $ 9,053 $ 11,683 $ 13,133 $ 28,745
Per Common Share
Net income $ 0.15 $ 0.20 $ 0.22 $ 0.49
Dividends $ 0.075 $ 0.075 $ 0.15 $ 0.15
Average Number of Shares
Outstanding 58,910 58,762 58,894 58,727
See accompanying notes to consolidated financial statements.
2
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Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED BALANCE SHEET
(Unaudited)
June 30, December 31,
thousands 1995 1994
ASSETS
Current Assets
Cash and cash equivalents $ 11,605 $ 6,530
Accounts receivable 94,005 115,181
Inventories, at average cost 16,094 13,420
Prepaid expenses 440 3,496
Total 122,144 138,627
Properties and Equipment
Original cost 3,546,311 3,446,252
Less accumulated depreciation, depletion
and amortization 1,521,479 1,460,196
Net properties and equipment - based on
the full cost method of accounting
for oil and gas properties 2,024,832 1,986,056
Deferred Charges 9,785 17,418
$2,156,761 $2,142,101
See accompanying notes to consolidated financial statements.
3
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Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED BALANCE SHEET (continued)
(Unaudited)
June 30, December 31,
thousands 1995 1994
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable
Trade and other $ 66,145 $ 95,829
Banks 6,059 14,287
Accrued expenses
Interest 9,892 7,676
Taxes and other 15,305 10,359
Total 97,401 128,151
Long-term Debt 666,720 629,281
Deferred Credits
Deferred income taxes 445,280 438,684
Other 40,831 46,386
Total 486,111 485,070
Stockholders' Equity
Common stock, par value $0.10
(200,000,000 shares authorized,
58,917,270 and 58,857,290 shares issued
and outstanding as of June 30, 1995
and December 31, 1994, respectively) 6,037 5,931
Preferred stock, par value $1.00
(2,000,000 shares authorized, no
shares issued as of June 30, 1995
and December 31, 1994) --- ---
Paid-in capital 289,537 243,976
Retained earnings (as of June 30, 1995,
$256,529,000 was not restricted
as to the payment of dividends) 657,332 653,112
Deferred compensation (3,127) (3,420)
Executives and directors benefits trust,
at market value (1,000,000 shares
as of June 30, 1995) (43,250) ---
Total 906,529 899,599
$2,156,761 $2,142,101
See accompanying notes to consolidated financial statements.
4
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Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
Six Months Ended
June 30
thousands 1995 1994
Cash Flow from Operating Activities
Net income $ 13,133 $ 28,745
Adjustments to reconcile net income to net
cash from operating activities:
Depreciation, depletion and amortization 78,834 90,683
Amortization of restricted stock 819 554
Deferred income taxes 6,624 14,964
99,410 134,946
Decrease in accounts receivable 21,176 16,972
Increase in inventories (2,674) (2,737)
Decrease in accounts payable - trade and
other and accrued expenses (22,522) (7,003)
Other items - net 6,466 6,402
Net cash from operating activities 101,856 148,580
Cash Flow from Investing Activities
Additions to properties and equipment (121,561) (222,784)
Sales and retirements of properties
and equipment 2,591 57,960
Net cash used in investing activities (118,970) (164,824)
Cash Flow from Financing Activities
Additions to debt 155,000 74,792
Retirements of debt (117,561) (11,000)
Decrease in accounts payable, banks (8,228) (2,350)
Dividends paid (8,913) (8,811)
Issuance of common stock 1,891 3,246
Issuance of treasury stock 252 ---
Purchase of treasury stock (252) (355)
Net cash from financing activities 22,189 55,522
Effect of Exchange Rate Changes on Cash --- (738)
Net Increase in Cash and Cash Equivalents 5,075 38,540
Cash and Cash Equivalents at Beginning of Period 6,530 17,799
Cash and Cash Equivalents at End of Period $ 11,605 $ 56,339
See accompanying notes to consolidated financial statements.
5
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Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1.Summary of Accounting Policies Anadarko Petroleum Corporation is engaged
in the exploration, development, production and marketing of gas, oil and
natural gas liquids (NGLs). The terms "Anadarko" and "Company" refer to
Anadarko Petroleum Corporation and its subsidiaries. The principal
subsidiaries of Anadarko are Anadarko Gathering Company, Anadarko Trading
Company and Anadarko Algeria Corporation. In December 1994, the Company
sold its wholly-owned subsidiary, Anadarko Petroleum of Canada Ltd.
Certain amounts for prior years have been reclassified to conform to the
current presentation.
2.Inventories Inventories are stated at the lower of average cost or market.
NGLs and natural gas, when sold from inventory, are charged to expense using
the average-cost method. The major classes of inventories are as follows:
June 30, December 31,
thousands 1995 1994
Materials and supplies $12,427 $11,953
Natural gas liquids, stored in inventory 1,072 842
Natural gas, stored in inventory 2,595 625
$16,094 $13,420
3.Properties and Equipment Oil and gas properties include costs of
$256,289,000 and $270,956,000 at June 30, 1995 and December 31, 1994,
respectively, which were excluded from capitalized costs being amortized.
These amounts represent costs associated with unevaluated properties and
major development projects.
4.Long-term Debt A summary of long-term debt follows:
June 30, December 31,
thousands 1995 1994
Notes Payable, Banks $104,000 $ 49,000
Commercial Paper 62,720 180,281
8 3/4% Notes due 1998 100,000 100,000
8 1/4% Notes due 2001 100,000 100,000
6 3/4% Notes due 2003 100,000 100,000
5 7/8% Notes due 2003 100,000 100,000
7 1/4% Debentures due 2025 100,000 ---
$666,720 $629,281
6
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Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
(Unaudited)
4.Long-term Debt (continued)
In March 1995, Anadarko issued $100,000,000 principal amount of 7 1/4%
Debentures due 2025. Each Debenture holder has the one-time right to have
the Company purchase on March 15, 2000, all or a portion of, the Debenture
at a purchase price equal to par plus accrued and unpaid interest. Net
proceeds from the offering were used to fix existing floating interest rate
debt.
The notes payable to banks and commercial paper have been classified as
long-term debt in accordance with Statement of Financial Accounting
Standards No. 6, "Classification of Short-term Obligations Expected to be
Refinanced", under the terms of Anadarko's Bank Credit Agreements.
5.Stock In May 1995, the Company issued 1,000,000 shares of common stock
to the Anadarko Petroleum Corporation Executives and Directors Benefits
Trust (Trust) to secure present and future unfunded benefit obligations of
the Company. The shares issued to the Trust are not considered outstanding
for quorum or voting calculations, but the Trust will receive dividends.
The shares are included in the calculation of earnings per share under the
treasury stock method and have no dilutive effect. The fair market value
of these shares is included in common stock and paid-in capital and as a
reduction to stockholders' equity. As of June 30, 1995, there were
1,000,000 shares in the Trust.
For the second quarter of 1995, dividends of seven and one-half cents per
share were paid to holders of common stock. Under the most restrictive
provisions of the various credit agreements, which limit the payment of
dividends by the Company, retained earnings of $256,529,000 and $249,599,000
were not restricted as to the payment of dividends at June 30, 1995 and
December 31, 1994, respectively.
6.Statement of Cash Flows Supplemental Information The amounts of cash
paid for interest (net of amounts capitalized) and income taxes are as
follows:
Six Months Ended
June 30
thousands 1995 1994
Interest $14,161 $12,472
Income taxes $ 1,008 $ 628
7
<PAGE>
Item 1. Financial Statements (continued)
ANADARKO PETROLEUM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
(Unaudited)
7.Operating Expenses Operating expenses by category are as follows:
Three Months Ended Six Months Ended
June 30 June 30
thousands 1995 1994 1995 1994
Oil and gas $16,512 $18,532 $32,348 $35,640
Plant and gathering 5,748 6,272 13,608 11,752
Gas purchases 2,158 3,868 4,863 8,098
Other 294 125 1,347 216
Total $24,712 $28,797 $52,166 $55,706
8. The information as furnished reflects all normal recurring adjustments that
are, in the opinion of management, necessary to a fair statement of
financial position as of June 30, 1995 and December 31, 1994, the results of
operations for the three and six months ended June 30, 1995 and 1994, and
cash flows for the six months ended June 30, 1995 and 1994.
8
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Overview of Operating Results
For the second quarter of 1995, Anadarko's net income was $9.1 million (15
cents per share of common stock outstanding) compared to net income of $11.7
million (20 cents per share) for the second quarter of 1994. Revenues for
the second quarter of 1995 were $113.9 million, down six percent compared to
$121.1 million for the second quarter of 1994. The decrease in net income
and revenues for the second quarter of 1995 is due primarily to lower natural
gas prices and lower production volumes of crude oil.
For the first six months of 1995, Anadarko's net income was $13.1 million (22
cents per share). This compares to net income of $28.7 million (49 cents per
share) for the same period of 1994. Revenues for the first six months of 1995
were $216.7 million, a decrease of 15 percent compared to $254.7 million for
the same period of 1994. The decrease in net income and revenues for the
first six months of 1995 is due primarily to lower natural gas production and
prices and lower production volumes of crude oil.
The following table shows the Company's volumes and U.S. prices for the three
and six months ended June 30, 1995 and 1994:
Three Months Ended
June 30 % Increase
1995 1994 (Decrease)
Natural gas, million cubic feet 43,546 42,957 1
Price per thousand cubic feet $ 1.46 $ 1.74 (16)
Crude oil and condensate,
thousand barrels 1,936 2,119 (9)
Price per barrel $ 17.44 $ 15.66 11
Natural gas liquids,
thousand barrels 754 823 (8)
Price per gallon $ 0.30 $ 0.29 3
9
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Six Months Ended
June 30 % Increase
1995 1994 (Decrease)
Natural gas, million cubic feet 84,866 91,185 (7)
Price per thousand cubic feet $ 1.38 $ 1.89 (27)
Crude oil and condensate,
thousand barrels 3,774 4,255 (11)
Price per barrel $ 16.97 $ 14.03 21
Natural gas liquids,
thousand barrels 1,768 1,645 7
Price per gallon $ 0.31 $ 0.26 19
See "Natural Gas Volumes, Prices and Markets" and "Crude Oil,
Condensate and Natural Gas Liquids Volumes and Prices".
Costs and expenses during the second quarter of 1995 were $91.6 million, a
decrease of seven percent compared to $98.2 million for the second quarter of
1994. The decrease was mostly related to lower operating expenses and
partially offset the decline in the quarter's revenues.
For the first six months of 1995, costs and expenses totaled $180.1 million, a
decrease of nine percent compared to $198.1 million for the first six months of
1994. The decrease is primarily due to lower charges for depletion,
depreciation and amortization and lower operating expenses.
Interest expense for the second quarter of 1995 increased 34 percent to $9.0
million compared to $6.7 million for the second quarter of 1994. For the first
six months of 1995, interest expense was $17.0 million, an increase of 24
percent compared to $13.7 million for the same period of 1994. The increases
primarily are due to higher levels of borrowings and interest rates in 1995.
Natural Gas Volumes, Prices and Markets During the second quarter of 1995,
Anadarko produced 43.5 billion cubic feet (Bcf) or 479 million cubic feet per
day (MMcf/d) of natural gas, up one percent compared to 43.0 Bcf or 472 MMcf/d
of gas in the second quarter of 1994. Anadarko's average U.S. gas price during
the second quarter of 1995 was $1.46 per thousand cubic feet (Mcf), a 16
percent decrease from $1.74 per Mcf in the second quarter of 1994.
10
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
For the first half of 1995, Anadarko produced 84.9 Bcf or 469 MMcf/d of gas,
down seven percent compared to 91.2 Bcf or 504 MMcf/d of gas for the same
period of 1994. The Company's average U.S. gas price for the first six
months of 1995 was $1.38 per Mcf, a 27 percent decrease from $1.89 per Mcf
for the same period of 1994. The decrease in gas production volumes
primarily is due to divestitures of properties in late 1994 and the Company's
decision to curtail some production during periods of weak prices in the
first quarter of 1995.
Crude Oil, Condensate and Natural Gas Liquids Volumes and Prices Anadarko's
crude oil and condensate production for the second quarter of 1995 decreased
nine percent to 1.9 million barrels (MMBbls) from 2.1 MMBbls in the second
quarter of 1994. Anadarko's average U.S. oil price was up 11 percent to $17.44
per barrel in the second quarter of 1995 compared to $15.66 per barrel for the
same period in 1994.
For the first six months of 1995, crude oil and condensate production was 3.8
MMBbls, a decrease of 11 percent compared to 4.3 MMBbls for the same period of
1994. Anadarko's average U.S. oil price for the first half of 1995 was $16.97
per barrel, an increase of 21 percent compared to $14.03 per barrel for the
same period of 1994.
The decline in oil and condensate production for both periods of 1995 primarily
is due to divestitures of properties during late 1994. Generally, the
Company's oil and condensate production is sold on a monthly basis as it is
produced. Production of oil is usually not affected by volatility in market
prices.
NGLs sales volumes were down eight percent to 754 thousand barrels (MBbls) at
an average price of 30 cents per gallon for the second quarter of 1995. This
compares to 823 MBbls at an average price of 29 cents per gallon for the same
period of 1994.
NGLs volumes for the first six months of 1995 were up seven percent to 1,768
MBbls at an average price of 31 cents per gallon compared to 1,645 MBbls at an
average price of 26 cents per gallon during the same period of 1994.
Hedging Strategies Anadarko uses financial instruments to limit exposure to
changes in the market price of natural gas and crude oil for both the Company
and its customers. While financial instruments are intended to reduce the
Company's exposure to declines in the market price of natural gas and crude
oil, the financial instruments may also limit Anadarko's gain from increases in
the market price of natural gas and crude oil. As a result, gains and losses
on financial instruments are generally offset by similar changes in the
realized price of natural gas and crude oil. Gains and losses are recognized
in revenues for the periods to which the financial instruments relate.
Anadarko's financial instruments currently are comprised of futures, swaps and
options.
11
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Capital Expenditures, Liquidity and Dividends
During the first six months of 1995, Anadarko's capital spending (including
capitalized interest and overhead) was $121.0 million compared to $222.4
million in the same period of 1994. Capital expenditures in both periods
related primarily to the Company's oil and gas exploration and development
activities. Capital expenditures for 1994 included $72 million for offshore
leases in the Gulf of Mexico that were acquired in March 1994.
Net cash from operating activities for the first half of 1995 was $101.9
million compared to $148.6 million in the first six months of 1994. Sources
of funds for the Company's capital spending programs include: cash flows;
existing available credit facilities; and, proceeds from sales of producing
properties, where the Company may totally divest non-core properties or
reduce (sell-down) its interest in core properties. The Company believes
these sources will be sufficient to meet capital and operating requirements
during the remainder of 1995. In addition, Anadarko may pursue other
financing options to reduce or stabilize interest costs.
In March 1995, Anadarko issued $100 million principal amount of 7 1/4%
Debentures due 2025. Each Debenture holder has the one-time right to have the
Company purchase on March 15, 2000, all or a portion of, the Debenture at a
purchase price equal to par plus the accrued and unpaid interest. Net proceeds
from the offering were used to fix floating interest rate debt.
Anadarko's Board of Directors declared a quarterly dividend of seven and
one-half cents per share of common stock. The dividend is payable on
September 27, 1995 to stockholders of record on September 13, 1995.
Under the most restrictive provisions of the various credit agreements, which
limit the payment of dividends by the Company, retained earnings of
$256,529,000 were not restricted as to the payment of dividends at June 30,
1995. The amount of future dividends for Anadarko will depend on earnings,
financial condition, capital requirements and other factors, and will be
determined by the Directors on a quarterly basis.
In May 1995, the Company issued 1,000,000 shares of common stock to the
Anadarko Petroleum Corporation Executives and Directors Benefits Trust
(Trust) to secure present and future unfunded benefit obligations of the
Company. The shares issued to the Trust are not considered outstanding for
quorum or voting calculations, but the Trust will receive dividends. The
shares are included in the calculation of earnings per share under the
treasury stock method and have no dilutive effect.
12
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Exploration and Development Drilling
During the second quarter of 1995, Anadarko participated in a total of 76
wells, including 37 oil wells, 25 gas wells and 14 dry holes. This compares
to a total of 56 wells, including 25 oil wells, 24 gas wells and seven dry
holes during the second quarter of 1994. For the first six months of 1995,
Anadarko participated in a total of 153 wells, including 79 oil wells, 52
gas wells and 22 dry holes. This compares to a total of 128 wells, including
69 oil wells, 39 gas wells and 20 dry holes during the first six months of
1994.
International
Algeria In July 1995, Anadarko and partners announced test results from the
Berkine East No.2 (BKE-2) well. The BKE-2 well tested at a rate of 17,309
barrels of oil per day (BOPD) and 3.9 MMcf/d of gas through a 68/64" choke at
1,227 pounds per square inch (psi) of flowing tubing pressure from 190 feet of
perforations. This appraisal well is located in the Ghadames Basin on Block
404. It is approximately 1.5 miles from an August 1994 discovery, the BKE-1.
The BKE-2 is Anadarko's third successful appraisal well in Algeria.
In the Algerian venture, the company has two partners, each with a 25 percent
interest; they are LASMO Oil (Algeria) Limited, a wholly-owned subsidiary of
LASMO plc, and Maersk Olie Algeriet AS, a wholly-owned subsidiary of Maersk
Olie OG Gas AS, a company in the Danish A.P. Moeller group. Under terms of a
Production Sharing Agreement, liquid hydrocarbons that are discovered,
developed and produced will be shared by Anadarko, its two partners and
Sonatrach, the national oil and gas enterprise of Algeria.
Political unrest continues in Algeria. Anadarko is closely monitoring the
situation and has taken reasonable and prudent steps to ensure the safety of
its employees working in the remote regions of the Sahara Desert. The
situation has not had any material effect on the Company's operations to date.
United States - Offshore
Matagorda Island The Matagorda Island 636 #1 well was completed during May
1995. This exploratory gas well was drilled in 1994 and suspended, pending the
installation of production equipment. The well had initial test results of 2.8
MMcf/d of gas and 38 barrels of condensate per day (BCPD) with flowing tubing
pressure of 6,054 psi. The second well, the Matagorda Island 622 #6 had
initial gas volumes of 15.6 MMcf/d and 191 BCPD through a 7/64" choke with
flowing tubing pressure of 4,815 psi. Amoco Production Company is the
operator. Anadarko has a 37.5 percent working interest in both wells.
United States - Onshore
Alaska In the 1994-95 winter drilling season, Anadarko and partners received
encouraging results from two wells drilled in the Colville River Delta on
Alaska's North Slope. Partners in the Alaska exploration program include
operator, Arco Alaska (56 percent working interest), Union Texas Petroleum (22
percent) and Anadarko (22 percent).
13
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
In June 1995, Union Texas announced that the partners had discovered 100
million barrels of oil reserves. Although additional drilling success in the
1995-96 drilling program is needed to justify commercial development, the
partners are working now to reduce drilling and field development costs.
Arco is conducting advance work on engineering design and permitting so if
the field is later proven commercial, the partners will have a jump-start on
the development process.
Depending on the condition of the frozen tundra on the North Slope, the 1996
winter drilling season will begin about February and run through early April.
Since the area of exploration is a river delta, the water and ground must be
frozen hard enough to support travel. All equipment must be moved out before
the ice begins to thaw in May.
Permian Basin West Texas In the Ketchum Mountain Field of Irion County,
Texas, 15 wells were completed in the second quarter of 1995. Initial
production from the 15 wells totaled 995 BOPD. Additional leasing and
continued development drilling are planned for 1995. Anadarko owns a 100
percent working interest in the wells.
The Company assumed operations of the TXL South Unit with the trade acquisition
of Texaco's interest in November 1994. Since that date, production has
increased from 650 BOPD to 1,370 BOPD, the highest rate in 20 years. This
increase is attributed to the reactivation of 47 shut-in producers and the
drilling of four new infill producers. A three- to four-year program of
waterflood expansion and drilling is expected to further increase oil
production.
Panhandle West Texas Four wells were completed in the second quarter of
1995 in the Red Cave Formation, located in Moore County Texas. Combined rates
from the four completed wells was 4.3 MMcf/d. Projected development drilling
for the remainder of the year includes 11 additional wells. Anadarko owns a
100 percent working interest in the wells.
Golden Trend Oklahoma In the Bradley Field of Grady County, Oklahoma, two
wells were completed in the second quarter of 1995. Combined initial tests
rates were 81 BOPD and 2.9 MMcf/d of gas. In the Antioch Field of Oklahoma,
one well was completed during the second quarter. Initial tests rates were 155
BOPD and 1.0 MMcf/d of gas. In the Lindsay Field of Oklahoma, two wells were
completed in the second quarter of 1995. Combined initial tests rates were 239
BOPD and 1.0 MMcf/d of gas. The Company owns an average 85.6 percent working
interest in these wells. Production for all of the wells is from the
Sycamore/Woodford/Hunton/Viola intervals.
14
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Southwest Kansas During the second quarter of 1995, the Santa Fe "E" #2
well was completed. Located in the Angman Field of Seward county, the initial
test rate was 2.4 MMcf/d from a 19/64" choke, with flowing tubing pressure of
900 psi. The Santa Fe "E" #3 is currently being completed.
There have been 27 completions in the first half of 1995 from the Hugoton Field
drilling program. Twenty-two infill wells were drilled with average production
per well of 322 thousand cubic feet per day (Mcf/d). Five Hugoton primary
wells were completed with average initial production of 330 Mcf/d. Combined
initial production from the 27 new wells is 8.7 MMcf/d. The Company's
working interest in these wells ranges between 34 and 100 percent. Anadarko
is the operator of 26 of these wells. Through June 1995, 336 infill wells
have been drilled and completed.
15
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Part II. OTHER INFORMATION
Item 1. Legal Proceedings
Heritage Resources, Inc. Litigation Pursuant to an order of the 162nd
Judicial District Court for Dallas County, Texas, dated January 29, 1988,
requiring all owners of interests in certain properties in Winkler County,
Texas, to be joined as parties Plaintiff or parties Defendant, Anadarko has
entered, as a party Plaintiff, a suit filed against Heritage Resources, Inc.
(Heritage) by Tribal Drilling Company. The Plaintiffs, among other things,
seek to have Heritage removed as operator of a well in which Plaintiffs own
interests. The Defendants have asserted counterclaims against Anadarko and
the 19 other Plaintiffs alleging that, among other things, the assertions of
the Plaintiffs are frivolous and were made in bad faith and the Plaintiffs
breached the joint operating agreements. The trial is scheduled to begin on
May 6, 1996. While the outcome of the litigation cannot be predicted,
Anadarko's management believes that any recovery on the counterclaims in a
material amount is remote.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit No. Description
4(a) Indenture for Senior Debt Securities,
dated as of March 1, 1995, between
Anadarko Petroleum Corporation and the
Chase Manhattan Bank, N.A., Trustee
4(b) Distribution Agreement, dated as of
March 9, 1995, for $300,000,000
Medium-Term Notes, Series A
27 Financial Data Schedule
(b) Reports on Form 8-K
There were no reports filed on Form 8-K for the three months ended
June 30, 1995.
16
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SIGNATURES
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 duly authorized officer and principal financial officer.
ANADARKO PETROLEUM CORPORATION
(Registrant)
August 11, 1995 [MICHAEL E. ROSE]
Michael E. Rose - Senior Vice President,
Finance and Chief Financial Officer
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[CONFORMED COPY]
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ANADARKO PETROLEUM CORPORATION
TO
THE CHASE MANHATTAN BANK, N.A.
TRUSTEE
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INDENTURE
DATED AS OF MARCH 1, 1995
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SENIOR DEBT SECURITIES
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ANADARKO PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED, AND
INDENTURE, DATED AS OF MARCH 1, 1995
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TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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sec. 310(a) (1) .......................................... 609
(a) (2) .......................................... 609
(a) (3) .......................................... Not Applicable
(a) (4) .......................................... Not Applicable
(a) (5) .......................................... 609
(b) .......................................... 608
sec. 311 .......................................... 613
sec. 312(a) .......................................... 701
702(a)
(b) .......................................... 702(b)
(c) .......................................... 702(c)
sec. 313(a) .......................................... 703
(b) .......................................... *
(c) .......................................... *
(d) .......................................... 703
sec. 314(a) .......................................... 704
(a) (4) .......................................... 1006
(b) .......................................... Not Applicable
(c) (1) .......................................... 102
(c) (2) .......................................... 102
(c) (3) .......................................... Not Applicable
(d) .......................................... Not Applicable
(e) .......................................... 102
sec. 315(a) .......................................... 601(a)
(b) .......................................... 602
(c) .......................................... 601(b)
(d) .......................................... 601(c)
(d) (1) .......................................... 601(a)(1)
(d) (2) .......................................... 601(c)(2)
(d) (3) .......................................... 601(c)(3)
(e) .......................................... 514
sec. 316(a) .......................................... 101
(a) (1)(A) .......................................... 502
512
(a) (1)(B) .......................................... 513
(a) (2) .......................................... Not Applicable
(b) .......................................... 508
(c) .......................................... 104(d)
sec. 317(a) (1) .......................................... 503
(a) (2) .......................................... 504
(b) .......................................... 1003
sec. 318(a) .......................................... 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
* Deemed included pursuant to Section 318(c) of the Trust Indenture Act
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TABLE OF CONTENTS
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PARTIES............................................................ 1
RECITALS OF THE COMPANY............................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act................................................ 2
Affiliate; control................................. 2
Authenticating Agent............................... 2
Board of Directors................................. 2
Board Resolution................................... 2
Business Day....................................... 3
Commission......................................... 3
Company............................................ 3
Company Request; Company Order..................... 3
Consolidated Net Tangible Assets................... 3
Corporate Trust Office............................. 3
Defaulted Interest................................. 3
Depositary......................................... 4
Event of Default................................... 4
Funded Debt........................................ 4
Global Security.................................... 4
Holder............................................. 4
Indebtedness....................................... 4
Indenture.......................................... 4
Interest........................................... 4
Interest Payment Date.............................. 4
Maturity........................................... 4
Mortgage........................................... 5
Officers' Certificate.............................. 5
Opinion of Counsel................................. 5
Original Issue Discount Security................... 5
Outstanding........................................ 5
Paying Agent....................................... 6
Person............................................. 6
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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ii
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Place of Payment................................... 6
Predecessor Security............................... 6
Principal Property................................. 6
Redemption Date.................................... 7
Redemption Price................................... 7
Regular Record Date................................ 7
Responsible Officer................................ 7
Restricted Subsidiary.............................. 7
Securities......................................... 7
Security Register and Security Registrar........... 7
Special Record Date................................ 8
Stated Maturity.................................... 8
Subsidiary......................................... 8
Trustee............................................ 8
Trust Indenture Act................................ 8
Vice President..................................... 8
SECTION 102. Compliance Certificates and Opinions............... 8
SECTION 103. Form of Documents Delivered to Trustee............. 9
SECTION 104. Acts of Holders.................................... 10
SECTION 105. Notices, Etc., to Trustee and Company.............. 11
SECTION 106. Notice to Holders; Waiver.......................... 11
SECTION 107. Conflict with Trust Indenture Act.................. 12
SECTION 108. Effect of Headings and Table of Contents........... 12
SECTION 109. Successors and Assigns............................. 12
SECTION 110. Separability Clause................................ 12
SECTION 111. Benefits of Indenture.............................. 12
SECTION 112. Governing Law...................................... 13
SECTION 113. Legal Holidays..................................... 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.................................... 13
SECTION 202. Form of Face of Security........................... 14
SECTION 203. Form of Reverse of Security........................ 16
SECTION 204. Form of Trustee's Certificate of Authentication.... 21
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............... 21
SECTION 302. Denominations...................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating..... 24
SECTION 304. Temporary Securities............................... 25
SECTION 305. Registration, Registration of Transfer and
Exchange......................................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities... 29
SECTION 307. Payment of Interest; Interest Rights Preserved..... 30
SECTION 308. Persons Deemed Owners.............................. 31
SECTION 309. Cancellation....................................... 32
SECTION 310. Computation of Interest............................ 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............ 32
SECTION 402. Application of Trust Money......................... 34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.................................. 34
SECTION 502. Acceleration of Maturity; Rescission and
Annulment........................................ 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................... 37
SECTION 504. Trustee May File Proofs of Claim................... 38
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities....................................... 39
SECTION 506. Application of Money Collected..................... 39
SECTION 507. Limitation on Suits................................ 40
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.................. 40
SECTION 509. Restoration of Rights and Remedies................. 41
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SECTION 510. Rights and Remedies Cumulative..................... 41
SECTION 511. Delay or Omission Not Waiver....................... 41
SECTION 512. Control by Holders................................. 41
SECTION 513. Waiver of Past Defaults............................ 42
SECTION 514. Undertaking for Costs.............................. 42
SECTION 515. Waiver of Stay or Extension Laws................... 43
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................ 43
SECTION 602. Notice of Defaults................................. 45
SECTION 603. Certain Rights of Trustee.......................... 45
SECTION 604. Not Responsible for Recitals or Issuance of
Securities....................................... 46
SECTION 605. May Hold Securities................................ 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........................................ 48
SECTION 611. Acceptance of Appointment by Successor............. 50
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business......................................... 52
SECTION 613. Preferential Collection of Claims Against
Company.......................................... 52
SECTION 614. Appointment of Authenticating Agent................ 53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.......................................... 55
SECTION 702. Preservation of Information; Communications
to Holders....................................... 55
SECTION 703. Reports by Trustee................................. 57
SECTION 704. Reports by Company................................. 57
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.................................... 57
SECTION 802. Successor Substituted.............................. 58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.......................................... 58
SECTION 902. Supplemental Indentures with Consent of Holders.... 59
SECTION 903. Execution of Supplemental Indentures............... 61
SECTION 904. Effect of Supplemental Indentures.................. 61
SECTION 905. Conformity with Trust Indenture Act................ 61
SECTION 906. Reference in Securities to Supplemental
Indentures....................................... 61
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest......... 62
SECTION 1002. Maintenance of Office or Agency.................... 62
SECTION 1003. Money for Securities Payments to Be Held in
Trust............................................ 63
SECTION 1004. Corporate Existence................................ 64
SECTION 1005. Limitation on Liens................................ 65
SECTION 1006. Statement by Officers as to Default................ 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................... 67
SECTION 1102. Election to Redeem; Notice to Trustee.............. 68
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed......................................... 68
SECTION 1104. Notice of Redemption............................... 69
SECTION 1105. Deposit of Redemption Price........................ 69
SECTION 1106. Securities Payable on Redemption Date.............. 70
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SECTION 1107. Securities Redeemed in Part........................ 70
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................... 71
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities....................................... 71
SECTION 1203. Redemption of Securities for Sinking Fund.......... 71
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to
Effect Defeasance................................ 72
SECTION 1302. Defeasance and Discharge........................... 72
SECTION 1303. Conditions to Defeasance........................... 73
SECTION 1304. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous
Provisions....................................... 75
TESTIMONIUM........................................................ 76
SIGNATURES AND SEALS............................................... 76
ACKNOWLEDGMENTS.................................................... 77
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PARTIES
INDENTURE, dated as of March 1, 1995, between ANADARKO PETROLEUM
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
17001 Northchase Drive, Houston, Texas 77060, and The Chase Manhattan Bank,
N.A., a national banking association duly organized and existing under the laws
of the United States of America, as Trustee (herein called 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 senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with 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 or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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101
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this instrument; and
(4) 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 Article Six, are defined in that
Article.
"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.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"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. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee, officer or employee of the
Company authorized to take such action by the Board of Directors as evidenced by
a Board Resolution.
<PAGE> 11
101
3
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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 corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"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 Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Company and its Restricted Subsidiaries (less applicable reserves and other
properly deductible items but including investments in non-consolidated Persons)
after deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendible at the
option of the obligor) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on a consolidated balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered. At
the date hereof, such office is located at 4 Chase MetroTech Center, Brooklyn,
New York 11245, Attention: Corporate Trust Administration.
"Defaulted Interest" has the meaning specified in Section 307.
<PAGE> 12
101
4
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary for the Securities of such series by the Company
pursuant to Section 301.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed which is not by its
terms subordinated in right of payment to the prior payment in full of the
Securities, having a maturity of more than 12 months from the date as of which
the amount thereof is to be determined or having a maturity of less than 12
months but by its terms being (i) renewable or extendible beyond 12 months from
such date at the option of the obligor or (ii) issued in connection with a
commitment by a bank or other financial institution to lend so that such
indebtedness is treated as though it had a maturity in excess of 12 months
pursuant to generally accepted accounting principles.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to and registered in the name of the Depositary for the
Securities of such series or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means any indebtedness for money borrowed or representing
the deferred purchase price of property or assets purchased.
"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 and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes
<PAGE> 13
101
5
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company.
"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; 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;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, 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;
<PAGE> 14
101
6
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, 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.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization 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 premium, if any) and
interest on the Securities of that series are payable 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.
"Principal Property" means any manufacturing plant, processing plant,
property interest in oil, gas, coal or other minerals in place or in geothermal
resources in place, pipeline, warehouse, office building or interest in real
property which is located in the United States or offshore the United States and
owned by the Company or any Restricted Subsidiary, the gross book value (without
deduction of any depreciation or depletion reserves) of which on the date as of
which the determination is being made
<PAGE> 15
101
7
exceeds 2% of Consolidated Net Tangible Assets, other than any such plant,
property interest, pipeline, warehouse, office building or interest in real
property, or any portion of the foregoing, 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 Subsidiaries as an entirety.
"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.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee within the Corporate Trust Office, including any Vice
President, assistant secretary, assistant treasurer, assistant cashier, trust
officer, assistant trust officer or assistant controller assigned to the
Corporate Trust Office, 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 of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company except a
Subsidiary (a) which neither transacts any substantial portion of its business
nor regularly maintains any substantial portion of its fixed assets within the
United States or offshore the United States or (b) which is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
<PAGE> 16
101,102
8
"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 instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock 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.
"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 or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of
<PAGE> 17
9 102,103
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 shall include
(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 that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
<PAGE> 18
103,104
10
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
acknowledgements 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) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date (which may be
any date not less than 10 nor more than 60 days before such solicitation) for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
<PAGE> 19
104,105,106
11
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after the record date, but only the Holders of record
at the close of business on the record date shall be deemed to be Holders for
the purposes of determining whether Holders of the requisite proportion of the
Outstanding Securities or a series thereof have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities or a series
thereof shall be computed as of the record date.
(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.
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 if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or sent by facsimile transmission to
(713) 874-3264 and confirmed by voice at (713) 874-3346, in either case to
the attention of Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
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 pro-
<PAGE> 20
106,107,108,109,110,111
12
vided) 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,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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.
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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.
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
<PAGE> 21
111,112,113,201
13
hereunder and the Holders, 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.
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 at any Place of Payment,
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 at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form or forms 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, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series is established by
action taken pursuant to a Board Resolution, either an Officers' Certificate
shall certify that such action shall have been duly taken or a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and, in either case, 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.
<PAGE> 22
201,202
14
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
The forms of Global Securities of any series shall have such provisions and
legends as are customary for Securities of such series in global form, including
without limitation any legend required by the Depositary for the Securities of
such series.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS ........, THE ISSUE DATE
IS ......, 19... [AND] [,] THE YIELD TO MATURITY IS ........ [.] [AND THE
ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS ........ AND THE METHOD
USED TO DETERMINE THE YIELD THEREFOR IS ........] ]
ANADARKO PETROLEUM CORPORATION
........................................
No. ...... $......
ANADARKO PETROLEUM CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .......... ......................, or
registered assigns, the principal sum of ............................ Dollars
on ...................................... [If the Security is to bear interest
prior to Maturity, insert -- , and to pay interest thereon from ...... .... or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on ...... and ...... in each year, commencing
......, at the rate of ....% per annum, until the principal hereof is paid or
made available for payment. 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
<PAGE> 23
202
15
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
of this series 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 of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ......, 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; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
<PAGE> 24
202,203
16
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:
ANADARKO PETROLEUM CORPORATION
By...................................
Attest:
..................................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of senior securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 1, 1995 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, 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 Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$............].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than ... days' notice by mail, [if applicable,
insert -- (1) on .............. in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any
time [on or after .........., 19...], 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 [on or before ................, .....%, and if
redeemed] during the 12-month period beginning ........ of the years indicated,
<PAGE> 25
203
17
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments 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 Securities of this series are subject to
redemption upon not less than... days' notice by mail, (1) on ........ in any
year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ..........], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the
<PAGE> 26
203
18
principal amount) set forth in the table below: If redeemed during the
12-month period beginning .............. of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION PRICE
REDEMPTION PRICE FOR REDEMPTION
FOR REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH
OF THE OPERATION OF THE
YEAR SINKING FUND SINKING FUND
- ------------------- ------------------------- -------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments 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.]
[Notwithstanding the foregoing, the Company may not, prior to ..........,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ....% per annum.]
[The sinking fund for this series provides for the redemption on .....
....... in each year beginning with the year .... and ending with the year ....
of [not less than] $............ [("mandatory sinking fund") and not more than
$............] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made -- in the
inverse order in which they become due.]
<PAGE> 27
203
19
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
[If the Security is not an Original Issue Discount Security, -- 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, -- 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 to -- 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 (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, 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 herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
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,
<PAGE> 28
203
20
if any) and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
[The Indenture permits defeasance at any time of (a) the entire
indebtedness on this Security and (b) certain restrictive covenants and certain
Events of Default upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.]
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 any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $........ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of trans-
fer 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.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 29
204,301
21
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN
BANK, N.A.,
as Trustee
By...................................
Authorized Signatory
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 set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) 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 Sections 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the formula or provision pursuant to which such rate
or rates are determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such
<PAGE> 30
301
22
interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(6) 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;
(7) 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;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) 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;
(10) if other than the currency of the United States of America, the
currency or currencies, including composite currencies, in which payment of
the principal of (and premium, if any) and interest on the Securities of
the series shall be payable, and the manner in which any such currencies
shall be valued against other currencies in which any other Securities
shall be payable;
(11) if the amount of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities, which Depositary shall
be, if then required by applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934, as amended;
<PAGE> 31
301,302
23
(13) any Events of Default and covenants of the Company with respect
to the Securities of such series, whether or not such Events of Default or
covenants are consistent with Events of Default or covenants set forth
herein; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
Securities of any one series may be issued at various times, may be
reopened for the issuance of additional Securities of such series and shall be
substantially identical, except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
At the election 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.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, an Officers' Certificate shall certify that such action
shall have been duly taken or a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and, in either case, 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. If all of the Securities of any series the forms or terms of
which are established by action taken pursuant to a Board Resolution are not
issued at one time, it shall not be necessary (notwithstanding any provision of
Section 201 or this Section) to deliver a record of or Officers' Certificate
certifying such action at the time of issuance of each Security of such series,
but an appropriate record of such action or such Officers' Certificate shall be
delivered at or prior to the time of issuance of the first Securities of such
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions 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.
<PAGE> 32
303
24
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series 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 the Company Order shall authenticate and deliver such Securities. If all
the Securities of any series are not to be issued at one time, such Company
Order may establish procedures for completion of the forms and determination of
the terms of such Securities and authentication and delivery thereof from time
to time; such procedures may include electronic transmission of instructions as
to such completion, determination, authentication and delivery. If the forms 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 such documents as it may reasonably request. The Trustee
shall also be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) if the forms of such Securities has been established in or
pursuant to a Board Resolution as permitted by Section 201, that each such
form has been established or will, when established in compliance with the
Company Order, be established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established in or
pursuant to a Board Resolution as permitted by Section 301, that such terms
have been established or will, when established in compliance
<PAGE> 33
303,304
25
with the Company Order, be established in conformity with the provisions of
this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, moratorium, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equity principles and to such
other matters as shall be specified in such Opinion of Counsel.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request. If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee. If all the Securities
of any series are not to be issued at one time, it shall not be necessary to
deliver an Opinion of Counsel at the time of issuance of each Security, but an
Opinion of Counsel, with appropriate modifications, may instead be delivered at
or prior to the time of the first issuance of Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for 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 and is 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
<PAGE> 34
304,305
26
which they are issued 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.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, 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 of the Company in a Place of Payment 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 Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency 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 Securities of the same
series and tenor, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series and tenor, of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and
<PAGE> 35
305
27
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every 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 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.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provisions of this Section, unless and until it
is exchanged in whole or in part for Securities in definitive registered form, a
Global Security representing all or a portion of the Securities of a series may
not be transferred, except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary. The Trustee and the Company shall treat the Depositary or its
nominee as the Holder of Global Securities for all purposes hereof.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Company that it is unwilling or
<PAGE> 36
305
28
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under Section 101,
the Company shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 301 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive registered form without coupons, in any authorized denominations, in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of the definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
If specified by the Company pursuant to Section 301 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series and tenor in definitive registered form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(1) to the Person specified by such Depositary a new Security or Securities
of the same series and term, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered
<PAGE> 37
305,306
29
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (1) above.
Every Person who takes or holds any beneficial interest in a Global
Security agrees that:
(a) the Company and the Trustee may deal with the Depositary as sole
owner of the Global Security and as the authorized representative of such
Person;
(b) such Person's rights in the Global Security shall be exercised
only through the Depositary and shall be limited to those established by
law and agreement between such Person and the Depositary and/or direct and
indirect participants of the Depositary; and
(c) the Depositary and its participants make book-entry transfers of
beneficial ownership among, and receive and transmit distributions of
principal and interest on the Global Securities to, such Persons in
accordance with their own procedures.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security 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.
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 and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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.
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
<PAGE> 38
306,307
30
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any 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 Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series 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 Securities of such series (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 Security of such series 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
<PAGE> 39
307,308
31
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series 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 Securities of such series (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
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such 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 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 Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and
<PAGE> 40
308,309,310,401
32
for all other purposes whatsoever, whether or not such 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.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. 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 in accordance with its customary practices.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a year of twelve 30-day months.
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, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and
<PAGE> 41
401
33
(ii) Securities 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 deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities 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 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.
<PAGE> 42
402,501
34
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 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.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(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 60 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund payments, when and as
due by the terms of a Security of that series, and continuance of such
default for a period of 60 days; or
(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 series of Securities other than that
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the
<PAGE> 43
501
35
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series 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; or
(5) default by the Company in the payment of any principal of any
Funded Debt of the Company outstanding in an aggregate principal amount in
excess of $10,000,000 as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise, the
effect of which default is to cause such Funded Debt to become, or to be
declared, due prior to its stated maturity unless such default shall be
cured, by payment or otherwise, within 30 days after the receipt by the
Company of written notice of such default from the Trustee or from the
Holders of at least 5% in principal amount of the Outstanding Securities of
that series; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company 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 90
consecutive days; or
(7) the commencement by the Company 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 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
<PAGE> 44
501,502
36
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company 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 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 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 the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series 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 amount (or specified amount) 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 of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
<PAGE> 45
502,503
37
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security or any deposit of any sinking fund payment when such becomes
due and payable and such default continues for a period of 60 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, the whole amount then due and payable on such
Securities 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
or rates prescribed therefor in such 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
<PAGE> 46
503,504
38
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and 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 such
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 of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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
<PAGE> 47
504,505,506
39
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 may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities 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 in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee 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 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 for principal (and premium, if
any) and interest, respectively.
<PAGE> 48
507,508
40
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 the 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 have offered to the Trustee reason-
able indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security 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 on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemp-
<PAGE> 49
508,509,510,511,512
41
tion 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 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 Securities 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 principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and
<PAGE> 50
512,513,514
42
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in 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 with respect to such
series 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.
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, other
than the Trustee, in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of
<PAGE> 51
514,515,601
43
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 on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. Waiver of 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 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.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to
<PAGE> 52
601
44
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) 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.
(d) 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.
<PAGE> 53
602,603
45
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 60 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 with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed 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) shall be entitled to
<PAGE> 54
603,604
46
receive and may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the 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 or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, 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;
(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 and shall not be responsible for the supervision of officers
and employees of such agents or attorneys; and
(h) the Trustee shall be entitled to the rights and protections
afforded to the Trustee pursuant to this Article Six in acting as a Paying
Agent or Security Registrar hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no re-
sponsibility for their correctness. The Trustee makes no representations as
<PAGE> 55
604,605,606,607
47
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent 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, subject to
Sections 310(b) and 311 of the Trust Indenture Act and Section 609, 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 in writing 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 wilful
misconduct; and
(3) to indemnify each of the Trustee and its officers, directors,
agents and employees for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or wilful misconduct on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
<PAGE> 56
607,608,609,610
48
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
Securities.
SECTION 608. Disqualification; Conflicting Interests.
Reference is made to Section 310(b) of the Trust Indenture Act. There shall
be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act
this Indenture with respect to the Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in The City of New York.
If such corporation 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. The Trustee shall not be an
obligor upon the Securities or an Affiliate thereof. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 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 in accordance with the
applicable requirements of Section 611.
<PAGE> 57
610
49
(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 the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act 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
Holder, 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 with respect to all Securities, 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
<PAGE> 58
610,611
50
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, 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 appointment 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 others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed 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 the 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
<PAGE> 59
611
51
to such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In 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 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.
(c) 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
paragraph (a) or (b) of this Section, as the case may be.
<PAGE> 60
611,612,613
52
(d) 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 and the Trust Indenture Act.
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.
Reference is made to Section 311 of the Trust Indenture Act. For purposes
of Section 311(b),
(1) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(2) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
<PAGE> 61
614
53
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding 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 exchange, registration of
transfer or partial redemption thereof 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 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 written notice
thereof to the Trustee and to the Company. The Trustee may at any
<PAGE> 62
614
54
time terminate the agency of an Authenticating Agent by giving 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 of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, N.A.
As Trustee
By...................................
As Authenticating Agent
By...................................
Authorized Signatory
<PAGE> 63
701,702
55
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) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
<PAGE> 64
702
56
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, 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 the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
<PAGE> 65
703,704,801
57
SECTION 703. Reports by Trustee.
Any Trustee's report required pursuant to Section 313(a) of the Trust
Indenture Act shall be dated as of August 1, and shall be transmitted within 60
days after August 1 of each year, commencing with the year 1995, by mail to all
Holders, as their names and addresses appear in the Security Register. 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 any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, or pursuant to Section 314 of
the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
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 or lease its properties and assets substantially as an entirety
to any Person unless:
(1) the person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of 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;
<PAGE> 66
801,802,901
58
(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 or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the Company into,
any other person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor person
had been named as the Company herein, and thereafter, except in the case of a
lease to another Person, the predecessor person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
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 corporation 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 if such covenants are to
<PAGE> 67
901,902
59
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities of any series pursuant to the
requirements of Section 1005 or otherwise; or
(7) to establish the form or terms of Securities 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(b); 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 which shall not adversely affect the interests of the
Holders of Securities of any series 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
<PAGE> 68
902
60
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; 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 instalment
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 any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Section 513,
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, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant 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
<PAGE> 69
902,903,904,905,906
61
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenti-
<PAGE> 70
906,1001,1002
62
cated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any 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. 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, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company 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.
<PAGE> 71
1003
63
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it 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, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit 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. For purposes of this Section, should a due date for principal
of (and premium, if any), interest on, or sinking fund payment with respect to
any series of Securities not be on a Business Day, such payment shall be due on
the next Business Day.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
<PAGE> 72
1003,1004
64
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for one year
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
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of 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. Corporate Existence
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
<PAGE> 73
1005
65
SECTION 1005. Limitation on Liens.
The Company will not itself, and will not permit any Restricted Subsidiary
to, incur, issue, assume or guarantee any indebtedness for money borrowed (all
such indebtedness for money borrowed being hereinafter in this Article called
"Debt"), secured by a Mortgage on any Principal Property or on any shares of
stock or Indebtedness of any Restricted Subsidiary, without effectively
providing that the Securities of any series (together with, if the Company shall
so determine, any other indebtedness of the Company or such Restricted
Subsidiary which is not subordinate in right of payment to the prior payment in
full of the Securities of any series) shall be secured equally and ratably with
(or prior to) such secured Debt, so long as such secured Debt shall be so
secured, unless, after giving effect thereto, the aggregate amount of all Debt
so secured would not exceed 10% of Consolidated Net Tangible Assets as of a date
within 150 days prior to such determination; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Mortgages existing at the date of this Indenture;
(2) Mortgages on property of, or on any shares of stock or
Indebtedness of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary;
(3) Mortgages in favor of the Company or any Restricted Subsidiary;
(4) Mortgages on property, shares of stock or Indebtedness existing at
the time of acquisition thereof (including acquisition through merger,
consolidation or other reorganization) or to secure the payment of all or
any part of the purchase price thereof or construction thereon or to secure
any Debt incurred prior to, at the time of, or within 180 days after the
later of the acquisition, the completion of construction or the
commencement of full operation of such property or within 180 days after
the acquisition of such shares or Indebtedness for the purpose of financing
all or any part of the purchase price thereof or construction thereon, it
being understood that if a commitment for such financing is obtained prior
to or within such 180-day period, the applicable Mortgage shall be deemed
to be included in this Clause (4) whether or not such Mortgage is created
within such 180-day period;
<PAGE> 74
1005
66
(5) Mortgages on property owned or leased by the Company or a
Restricted Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country or any political subdivision thereof, or in
favor of holders of securities issued by any such entity, pursuant to any
contract or statute (including without limitation, mortgages or easements
on property of the Company or any Restricted Subsidiary related to the
financing of such property pursuant to Section 103 of the Internal Revenue
Code of 1954, as amended or any successor section thereto);
(6) Mortgages to secure partial, progress, advance or other payments
or any Debt incurred for the purpose of financing all or any part of the
purchase price or cost of construction, development or repair, alteration
or improvement of the property subject to such Mortgage if the commitment
for the financing is obtained not later than one year after the latter of
the completion of or the placing into operation (exclusive of test and
start-up periods) of such constructed, developed, repaired, altered or
improved property;
(7) Mortgages on oil, gas, coal or other minerals in place or on
geothermal resources in place, or on related leasehold or other property
interests, which are incurred to finance development, production or
acquisition costs (including but not limited to Mortgages securing advance
sale obligations);
(8) Mortgages on equipment used or usable for drilling, servicing or
operation of oil, gas, coal or other mineral properties or of geothermal
properties;
(9) Mortgages arising in connection with contracts or subcontracts
with, or made at the request of, the United States of America, any State
thereof or any department, agency or instrumentality of the United States
or any State thereof; and
(10) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing Clauses (1) to (9) of this Section 1005, inclusive;
provided, however, that such extension, renewal or replacement Mortgage
shall be limited to all or a part of the same property, shares of stock or
Restricted Subsidiary Indebtedness that
<PAGE> 75
1005,1006,1101
67
secured the Mortgage extended, renewed or replaced (plus improvements on
such property).
The following transactions shall be deemed to create Debt secured by a
Mortgage:
(i) the sale or other transfer of oil, gas, coal or other minerals in
place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount of money (however determined) or
a specified amount of oil, gas, coal or other minerals, or the sale or
other transfer of any other interest in property of the character commonly
referred to as an oil, gas, coal or other mineral payment or a production
payment; and
(ii) the sale or other transfer by the Company or a Restricted
Subsidiary of properties to a partnership, joint venture or other entity
whereby the Company or such Restricted Subsidiary would retain partial
ownership of such properties.
SECTION 1006. Statement by Officers as to Default.
Annually, within 120 days after the close of each fiscal year beginning
with the fiscal year ending December 31, 1995, the Company will deliver to the
Trustee a brief certificate (which need not include the statements set forth in
Section 102) from the principal executive officer, principal financial officer
or principal accounting officer of the Company as to his or her knowledge of the
Company's compliance (without regard to any period of grace or requirement of
notice provided herein) with all conditions and covenants under the Indenture.
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.
<PAGE> 76
1102,1103
68
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 five
Business Days prior to the last date for the giving of notice of such redemption
(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. 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 Officers' 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 40 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company 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. If the Securities of
any series to be redeemed consist of Securities having different dates on which
the principal is payable or different rates of interest, or different methods by
which interest may be determined or have any other different tenor or terms,
then the Company may, by written notice to the Trustee, direct that the
Securities of such series to be redeemed shall be selected from among the groups
of such Securities having specified tenor or terms and the Trustee shall
thereafter select the particular Securities to be redeemed in the manner set
forth in the preceding paragraph from among the group of such Securities so
specified.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate,
<PAGE> 77
1103,1104,1105
69
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.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 15 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
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, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with 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 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.
<PAGE> 78
1106,1107
70
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. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that instalments 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.
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 prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and tenor, 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.
<PAGE> 79
1201,1202,1203
71
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 terms 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 for redemption) 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
<PAGE> 80
1203,1301,1302
72
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 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance.
If pursuant to Section 301 provision is made for defeasance of the
Securities of a series under Section 1302, then the provisions of such Section,
together with the other provisions of this Article Thirteen, shall be applicable
to the Securities of such series, and the Company may at its option by or
pursuant to a Board Resolution, at any time, with respect to the Securities of
such series, elect to have Section 1302 (if applicable) be applied to the
Outstanding Securities of such 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 above option applicable to this Section,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged
<PAGE> 81
1302,1303
73
hereunder: (A) the rights of Holders of Outstanding 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
premium, if any) and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties, and immunities
of the Trustee hereunder and (D) this Article Thirteen.
SECTION 1303. Conditions to Defeasance.
The following shall be the conditions to application of Section 1302 to the
Outstanding Securities of such series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree 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 such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
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 other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of principal
or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America,
which, in either case, are not callable or redeemable
<PAGE> 82
1303
74
at the option of the issuer thereof, and shall also include a 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 such U.S.
Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit.
(3) Such defeasance shall not cause the Trustee for the Securities of
such series to have a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to any securities of the Company.
(4) Such defeasance shall not result in a breach or violation of, or
constitute a default under this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound.
(5) Such defeasance shall not cause any Securities of such series then
listed on any registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted.
(6) Such defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Indenture relating to the defeasance under
Section 1302 have been complied with.
Notwithstanding the foregoing, if an Event of Default specified in
Subsection 501(5) or 501(6), or an event which with lapse of time would become
such an Event of Default, shall occur during the period ending on
<PAGE> 83
1303,1304
75
the 91st day after the date of the deposit referred to in Clause (1) or, if
longer, ending on the day following the expiration of the longest preference
period applicable to the Company in respect of such deposit, then, effective
upon such occurrence, the defeasance and such deposit shall be rescinded and
annulled, and the Company, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions.
SECTION 1304. 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 -- collectively, for purposes of this
Section 1304, the "Trustee") pursuant to Section 1303 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money 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 1303 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
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 1303 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance.
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 counter-parts
shall together constitute but one and the same instrument.
<PAGE> 84
76
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.
ANADARKO PETROLEUM CORPORATION
[SEAL]
By M. E. ROSE
------------------------------------
Senior Vice President, Finance
ATTEST:
SUZANNE SUTER
- ---------------------------------------
Corporate Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
[SEAL]
By MARY LEWICKI
------------------------------------
Second Vice President
ATTEST:
BRYAN KOSSOVE
- ---------------------------------------
<PAGE> 85
77
STATE OF TEXAS
COUNTY OF HARRIS
On the 2nd day of March, 1995, before me personally came MICHAEL E. ROSE,
to me known, who, being by me duly sworn, did depose and say that he is Senior
Vice President, Finance of ANADARKO PETROLEUM CORPORATION, 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.
LINDA F. BEARDEN
-------------------------------------
NOTARY
Linda F. Bearden
Notary Public, State of Texas
My Commission Expires
Nov. 29, 1997
STATE OF NEW YORK
COUNTY OF KINGS
On the 2nd day of March, 1995, before me personally came MARY LEWICKI, to
me known, who, being by me duly sworn, did depose and say that such person is a
Second Vice President of THE CHASE MANHATTAN BANK, N.A., one of the corporations
described in and which executed the foregoing instrument; that such person 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 such person signed his name thereto by like
authority.
DELLA K. BENJAMIN
-------------------------------------
NOTARY
Della K. Benjamin
Notary Public, State of New York
No. 24-4659667
Qualified in Kings County
Commission Expires
April 30, 1995
ANADARKO PETROLEUM CORPORATION
$300,000,000
Medium-Term Notes, Series A
DISTRIBUTION AGREEMENT
March 9, 1995
CS First Boston Corporation
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
PaineWebber Incorporated
c/o CS First Boston Corporation,
Park Avenue Plaza,
New York, New York 10055
Dear Sirs:
ANADARKO PETROLEUM CORPORATION, a Delaware
corporation (the "Company"), confirms its agreement with
each of you with respect to the issue and sale from time to
time by the Company of up to $300,000,000 (or the equivalent
thereof in one or more foreign currencies or composite
currencies) aggregate initial offering price of its
Medium-Term Notes, Series A (the "Notes"). The Notes will
be issued under an Indenture dated as of March 1, 1995 (the
"Indenture") between the Company and The Chase Manhattan
Bank, N.A., as Trustee (the "Trustee"), and will have the
maturities, interest rates, redemption provisions, if any,
and other terms as set forth in supplements to the Basic
Prospectus referred to below.
The Company hereby appoints CS First Boston
Corporation, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and PaineWebber Incorporated
(individually, an "Agent" and collectively, the "Agents") as
its agents, subject to Sections 7 and 12, for the purpose of
soliciting and receiving offers to purchase Notes from the
<PAGE>
Company by others and, on the basis of the representations
and warranties herein contained, but subject to the terms
and conditions herein set forth, each Agent agrees to use
reasonable efforts to solicit and receive offers to purchase
Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as
principal and, if requested by such Agent, the Company will
enter into a Terms Agreement relating to such sale (a "Terms
Agreement") in accordance with the provisions of Section
2(b) hereof.
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement, including a prospectus, relating to the Notes.
Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter
defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "1933 Act"),
supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Notes.
The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the
"Basic Prospectus." The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement or
supplements (each a "Prospectus Supplement") specifically
relating to Notes, as filed with, or transmitted for filing
to, the Commission pursuant to Rule 424. As used herein,
the terms "Basic Prospectus" and "Prospectus" shall include
in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to
be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act").
1. Representations and Warranties. The Company
represents and warrants to and agrees with each Agent as of
the Commencement Date, as of each date on which an Agent
solicits offers to purchase Notes, as of each date on which
the Company accepts an offer to purchase Notes (including
any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), as of each date the Company issues
and delivers Notes and as of each date the Registration
Statement or the Basic Prospectus is amended or
supplemented, as follows (each a "Representation Date") (it
being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration
2
<PAGE>
Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement and the
Prospectus, at the time the Registration Statement
became effective and as of the applicable
Representation Date, complied, and will comply, in
all material respects with the requirements of the
1933 Act, the rules and regulations thereunder
(the "1933 Act Regulations") and the Trust
Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations thereunder
(the "1939 Act Regulations"); the Registration
Statement, at the time the Registration Statement
became effective and as of the applicable
Representation Date, did not, and will not,
contain an untrue statement of a material fact or
omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading; and the Prospectus, at the
time the Registration Statement became effective
and as of the applicable Representation Date, did
not, and will not, contain an untrue statement of
a material fact or omit to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; provided, however, that
the representations and warranties in this
subsection shall not apply to (i) statements in or
omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity
with information furnished to the Company in
writing by any Agent expressly for use in the
Registration Statement or Prospectus or (ii) that
part of the Registration Statement which shall
constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the
Trustee under the Indenture.
(b) The documents incorporated by reference in
the Prospectus, at the time they were or hereafter are
filed with the Commission, complied, and will comply,
in all material respects with the requirements of the
1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and
when read together with the other information in the
Prospectus, at the time the Registration Statement and
any amendments thereto became or become effective, and
when filed under the 1934 Act, did not, and will not,
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
3
<PAGE>
or necessary to make the statements therein, in the
light of the circumstances under which they are made,
not misleading.
(c) The accountants who certified the financial
statements included or incorporated in the Registration
Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(d) The consolidated financial statements
included or incorporated in the Registration Statement
and Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries
as of the dates indicated and the results of their
operations and the changes in their financial position
for the periods specified; said financial statements
have been prepared in conformity with generally
accepted accounting principles consistently applied
during the period, except as stated therein.
(e) Since the respective dates as of which
information is given in the Prospectus, except as
otherwise stated therein or contemplated thereby, there
has been (A) no material adverse change in the
condition, financial or otherwise, of the Company and
its subsidiaries considered as one enterprise and (B)
no litigation or governmental proceeding instituted or,
to the knowledge of the Company, threatened against the
Company or any subsidiary, which would be expected to
have any material adverse effect on the financial
condition of the Company and its subsidiaries
considered as one enterprise.
(f) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Delaware with the
corporate power and authority to own, lease and operate
its properties and conduct its business as described in
the Prospectus; and the Company is duly qualified or
licensed to do business as a foreign corporation and is
in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification or licensing,
except to the extent that the failure to be so
qualified or licensed or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries considered as one enterprise.
(g) Each subsidiary of the Company listed on
Exhibit C hereto (a "Significant Subsidiary") is a duly
incorporated and validly existing corporation in good
4
<PAGE>
standing under the laws of its respective jurisdiction
of incorporation with full corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Prospectus.
Each Significant Subsidiary is duly qualified or
licensed to do business as a foreign corporation and
is in good standing in each jurisdiction in which the
ownership or leasing of properties and the conduct of
its business requires such qualification or licensing,
except to the extent that the failure to be so
qualified or licensed or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries considered as one enterprise. The issued
and outstanding common stock of each of the
Significant Subsidiaries has been duly authorized and
validly issued and is fully paid and non-assessable
and is owned, except to the extent set forth in the
Prospectus, by the Company free and clear of any
mortgages, liens or similar encumbrances.
(h) Neither the Company nor any Significant
Subsidiary is in violation of its certificate of
incorporation or by-laws, and the Company is not in
default in the performance or observance of any
material obligation in any indenture, mortgage,
evidence of indebtedness or similar agreement or
instrument to which it is a party or by which it or
any of its properties may be bound. The execution and
delivery of this Agreement, the Indenture and the
Terms Agreement and the consummation of the
transactions contemplated herein and therein and the
incurrence of the obligations herein and therein set
forth, have been or will be duly authorized by all
necessary corporate action and do not and will not,
conflict with, or constitute or result in a breach of
or default under, the certificate of incorporation or
by-laws of the Company or any bond, debenture, note or
other evidence of indebtedness or any material
contract, lease, license, indenture, mortgage, loan
agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or any
of their respective properties may be bound, or any
law, order, rule, regulation or court decree.
(i) No consent, approval, authorization, order or
qualification or registration of or with any court or
governmental agency or body is required for the
consummation of the transactions contemplated in this
Agreement, except for (i) the registration of the offer
and sale of the Notes under the 1933 Act and such
5
consents, approvals, authorizations, orders,
qualifications or registrations as may be required
under the Blue Sky or securities laws of any
jurisdiction in connection with the purchase and
distribution of the Notes by the Agents and (ii) the
qualification of the Indenture under the 1939 Act.
(j) The Company and each Significant Subsidiary
possess such valid franchises, certificates of
convenience and necessity, easements, rights-of-way,
operating rights, licenses, permits, consents,
authorizations and orders of governmental political
subdivisions or regulatory authorities as, in the
opinion of the Company, are materially necessary to
carry on the respective businesses of each as described
in the Prospectus.
(k) Each of this Agreement and any applicable
Terms Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Indenture has been duly authorized by the
Company and (assuming due authorization, execution and
delivery thereof by the Trustee) when executed and
delivered by the Company will constitute the valid and
binding agreement of the Company except to the extent
that the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws now or hereafter in effect relating to
creditors' rights generally and general principles of
equity whether enforcement is sought at law or in
equity, and the Indenture has been qualified under the
1939 Act.
(m) The Notes have been duly authorized for
issuance and sale pursuant to this Agreement (or will
have been so authorized prior to each issuance of
Notes) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor
in accordance with this Agreement or the applicable
Terms Agreement, the Notes will be valid and binding
obligations of the Company entitled to the benefits of
the Indenture; and the Notes and the Indenture conform
or will conform at the time of their issuance or
execution, as the case may be, in all material respects
to all statements relating thereto contained in the
Prospectus.
(n) Neither the Company nor any of its
subsidiaries is, or is a subsidiary of, a "holding
6
company", or is a "public-utility company", each as
defined in the Public Utility Holding Company Act of
1935.
(o) Immediately after any sale of Notes by
the Company hereunder or under any Terms Agreement, the
aggregate amount of Notes which shall have been issued
and sold by the Company hereunder or under any Terms
Agreement and of any other securities of the Company
that shall have been issued and sold pursuant to the
Registration Statement shall not exceed the amount of
securities the offer and sale of which is registered
under the Registration Statement.
Notwithstanding the foregoing, the representations
and warranties set forth in Sections 1(a), (i) and (m)
(except as to the authorization of the Notes), when made as
of the Commencement Date, or as of any date on which an
Agent solicits offers to purchase Notes, with respect to any
Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange
rates, commodity prices, equity indices or other factors,
shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures
Trading Commission.
2. Solicitations as Agent; Purchases as
Principal.
(a) Solicitations as Agent. In connection with
an Agent's actions as agent hereunder, such Agent agrees to
use reasonable efforts to solicit offers to purchase Notes
upon the terms and conditions set forth in the Prospectus as
then amended or supplemented. No Agent shall have any
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise
monitoring the availability of Notes for sale under the
Registration Statement.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time,
for any period of time or permanently, the solicitation of
offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, the Agents
will forthwith suspend solicitations of offers to purchase
Notes from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed.
While such solicitation is suspended, the Company shall not
be required to deliver any certificates, opinions or letters
in accordance with Section 5.
7
<PAGE>
The Company agrees to pay to each Agent, as
consideration for the sale of each Note resulting from a
solicitation made or an offer to purchase received by such
Agent, a commission in the form of a discount from the
purchase price of such Note equal to the percentage set
forth below of the purchase price of such Note:
Term Commission Rate
From 9 months to less than 12 months .125%
From 12 months to less than 18 months .150%
From 18 months to less than 24 months .200%
From 24 months to less than 30 months .250%
From 30 months to less than 3 years .300%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 7 years .500%
From 7 years to less than 10 years .550%
From 10 years to less than 20 years .600%
From 20 years to 30 years .750%
Greater than 30 years To be negotiated
at time of trade
Each Agent shall communicate to the Company,
orally or in writing, each offer to purchase Notes received
by such Agent as agent that in its judgment should be
considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any
offer in whole or in part. Each Agent shall have the right
to reject any offer to purchase Notes that it considers to
be unacceptable, and any such rejection shall not be deemed
a breach of its agreements contained herein. The procedural
details relating to the issue and delivery of Notes sold by
the Agents as agents and the payment therefor shall be as
set forth in the Administrative Procedures (as hereinafter
defined).
(b) Purchases as Principal. Each sale of Notes
to an Agent as principal shall be made in accordance with
the terms of this Agreement and, if requested by such Agent,
the Company will enter into a Terms Agreement that will
provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Terms Agreement will be
substantially in the form of Exhibit A hereto but may take
the form of an exchange of any form of written
telecommunication between such Agent and the Company.
An Agent's commitment to purchase Notes as
principal, whether pursuant to a Terms Agreement or
otherwise, shall be deemed to have been made on the basis of
the representations and warranties of the Company herein
8
<PAGE>
contained and shall be subject to the terms and conditions
herein set forth. Each agreement by an Agent to purchase
Notes as principal (whether or not set forth in a Terms
Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date
of such Notes, the price to be paid to the Company for such
Notes, the interest rate and interest rate formula, if any,
applicable to such Notes and any other terms of such Notes.
Each such agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from
the independent public accountants of the Company pursuant
to Section 4 hereof.
Each Terms Agreement shall specify the time and
place of delivery of and payment for such Notes. Unless
otherwise specified in a Terms Agreement, the procedural
details relating to the issue and delivery of Notes
purchased by an Agent as principal and the payment therefor
shall be as set forth in the Administrative Procedures.
Each date of delivery of and payment for Notes to be
purchased by an Agent as principal, whether pursuant to a
Terms Agreement or otherwise, is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Terms Agreement,
an Agent purchasing Notes as principal may resell such Notes
to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the
Prospectus relating to such Notes.
(c) Administrative Procedures. The Agents and
the Company agree to perform the respective duties and
obligations specifically provided to be performed in the
Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended
from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and the
Agents.
(d) Delivery. The documents required to be
delivered by Section 4 of this Agreement as a condition
precedent to the Agents' obligations to begin soliciting
offers to purchase Notes as agents of the Company shall be
delivered at the office of Davis Polk & Wardwell, New York,
New York, special counsel for the Company, not later than
4:00 p.m., New York time, on the date hereof, or at such
other time and/or place as the Agents and the Company may
agree upon in writing, but in no event later than the day
prior to the earlier of (i) the date on which the Agents
begin soliciting offers to purchase Notes and (ii) the first
date on which the Company accepts any offer by an Agent to
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purchase Notes as principal. The date of delivery of such
documents is referred to herein as the "Commencement Date."
(e) Obligations Several. The Company
acknowledges that the obligations of the Agents under this
Agreement are several and not joint.
3. Agreements. The Company agrees with each
Agent that:
(a) Prior to the termination of the offering of
the Notes pursuant to this Agreement or any Terms Agreement,
the Company will not file any Prospectus Supplement relating
to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents
copies thereof for their review a reasonable time prior to
the filing; provided, however, that (i) the foregoing
requirement shall not apply to any of the Company's periodic
filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, copies of
which filings the Company will cause to be delivered to the
Agents promptly after being transmitted for filing with the
Commission and (ii) any Prospectus Supplement that merely
sets forth the terms or a description of particular Notes
need only be reviewed and approved by the Agent or Agents
offering such Notes. Subject to the foregoing sentence,
the Company will promptly cause each Prospectus Supplement
to be filed with or transmitted for filing to the Commission
in accordance with Rule 424(b) under the 1933 Act. The
Company will file promptly all documents required to be
filed with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the 1934 Act. The Company will promptly
advise the Agents of (i) the filing of any amendment or
supplement to the Basic Prospectus relating to the Notes
(except that the filing of an amendment or supplement to the
Basic Prospectus that merely sets forth the terms or a
description of particular Notes need only be notified to the
Agent or Agents offering or purchasing such Notes), (ii) the
filing and effectiveness of any amendment to the
Registration Statement, (iii) any request by the Commission
for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or any
additional information, (iv) the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) the receipt by the
Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its
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<PAGE>
reasonable best efforts to prevent the issuance of any such
stop order or notice of suspension of qualification and, if
issued, to obtain as soon as possible the withdrawal
thereof. The Company will promptly notify the Agents of any
downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under
the 1933 Act), or any public announcement that any such
organization has under surveillance or review its rating of
any debt securities of the Company (other than an
announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of
such rating), as soon as the Company learns of such
downgrading or public announcement.
(b) If at any time when the Prospectus is
required by the 1933 Act to be delivered in connection with
sales of Notes any event shall occur or condition exist as a
result of which it is necessary to further amend or
supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser, or if
it shall be necessary at any time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, or if it shall be necessary at any time to
amend or supplement the Indenture in order to comply with
the 1939 Act, the Company will immediately notify the Agents
by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified
by the Company, the Agents shall forthwith suspend such
solicitation and cease using the Prospectus. If the Company
shall decide to amend or supplement the Registration
Statement or Prospectus, as then amended or supplemented, it
shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare
and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, that will
correct such statement or omission or effect such compliance
and will supply such amended or supplemented Prospectus to
the Agents in such quantities as they may reasonably
request. If the documents, certificates, opinions and
letters furnished to the Agents pursuant to paragraph (d)
below and Section 5 in connection with the preparation and
filing of such amendment or supplement are satisfactory in
all respects to any Agent, upon the filing with the
Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the
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Registration Statement, such Agent may resume the
solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b),
until the distribution of any Notes has been completed, if
any event described above in this paragraph (b) occurs, the
Company will, at its own expense, forthwith prepare and
cause to be filed promptly with the Commission an amendment
or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, will supply such amended or
supplemented Prospectus to such Agent in such quantities as
it may reasonably request and shall furnish to such Agent
pursuant to paragraph (d) below and Section 5 such
documents, certificates, opinions and letters as it may
request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to
its security holders and to each Agent requesting the same
as soon as practicable, but in any event not later than 15
months after the effective date of the Prospectus Supplement
relating to such Notes, earning statements of the Company
and its subsidiaries (which need not be audited) complying
with Section 11(a) of the 1933 Act and the 1933 Act
Regulations (including at the option of the Company
Rule 158).
(d) The Company will furnish to each Agent
requesting the same copies of any amendment or supplement to
the Registration Statement or the Prospectus and of such
other documents relating to the Company as such Agent may
reasonably request for its own use.
(e) The Company will cooperate with the Agents to
qualify the Notes for offering and sale under the applicable
Blue Sky or securities laws of such states and other
jurisdictions of the United States as the Agents may
designate, and will cooperate in maintaining such
qualifications in effect for as long as may be required for
the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent
to service or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not
so qualified. In each jurisdiction in which the Notes or
the sale thereof shall have been qualified as above
provided, the Company will cooperate with the Agents to make
and file such statements and reports in each year as may be
required by the laws of such jurisdiction.
(f) The Company will, whether or not any sale of
Notes is consummated, pay all expenses incident to the
performance of its obligations under this Agreement and any
12
<PAGE>
Terms Agreement, including: (i) the preparation and filing
of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and
of the Trustee and its counsel, (iv) the qualification of
the Notes under securities or Blue Sky laws in accordance
with the provisions of Section 3(e), including filing fees
and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the
preparation of any Blue Sky Memoranda, (v) the printing and
delivery to the Agents in quantities as hereinabove stated
of copies of the Prospectus and any amendments or
supplements thereto, (vi) any fees charged by rating
agencies for the rating of the Notes, (vii) the fees and
expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.,
(viii) the reasonable fees and disbursements of counsel for
the Agents incurred in connection with the establishment of
the program contemplated by this Agreement, and (ix) any
reasonable out-of-pocket expenses (including fees and
disbursements of counsel for the Agents in connection with
the maintenance of the program contemplated by this
Agreement) incurred by the Agents with the prior approval of
the Company.
(g) Between the date of any agreement by an Agent
to purchase Notes as principal and the Settlement Date with
respect to such agreement, the Company will not, without
such Agent's prior consent, offer, sell, contract to sell or
otherwise dispose of any Notes of the Company substantially
similar to the Notes sold pursuant to such agreement (other
than (i) the Notes that are to be sold pursuant to such
agreement and (ii) Notes previously agreed to be sold by the
Company), except as may otherwise be provided in such
agreement. The foregoing shall not restrict the Company
from borrowings under revolving credit agreements and lines
of credit, the private placement of securities or issuances
of commercial paper, or entering into interest rate swaps.
4. Conditions of the Obligations of the Agents.
Each Agent's obligation to solicit offers to purchase Notes
as agent of the Company, each Agent's obligation to purchase
Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to
purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's
officers made in each certificate furnished pursuant to the
provisions hereof and to the performance and observance by
the Company of all covenants and agreements herein contained
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<PAGE>
on its part to be performed and observed (in the case of an
Agent's obligation to solicit offers to purchase Notes, at
the time of such solicitation, and, in the case of an
Agent's or any other purchaser's obligation to purchase
Notes, at the time the Company accepts the offer to purchase
such Notes and at the time of purchase) and (in each case)
to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as
the case may be:
(i) there shall not have occurred any stop
order suspending the effectiveness of the
Registration Statement under the 1933 Act or
proceedings therefor initiated or threatened by
the Commission;
(ii) there shall not have occurred any
lowering of the rating assigned by any nationally
recognized securities rating agency to any debt
securities of the Company, or any public
announcement that any such organization has under
surveillance or review its rating of any debt
securities of the Company (other than an
announcement with positive implications of a
possible upgrading, and no implication of a
possible downgrading, of such rating);
(iii) there shall not have occurred any
material adverse change in the condition,
financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in
the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise, whether or not
arising in the ordinary course of business, from
that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or
at the time such offer to purchase was made;
(iv) there shall not have occurred any (A)
suspension of trading generally or fixing of
minimum or maximum prices for trading, or
requiring of maximum ranges for prices for
securities on either the American Stock Exchange
or the New York Stock Exchange, or suspension of
trading of any securities of the Company on either
such exchange or (B) declaration of a banking
moratorium by either Federal or New York
authorities or (C) any new outbreak of hostilities
14
<PAGE>
or other calamity or crisis the effect of which on
the financial markets of the United States is such
as to make it, in the reasonable judgment of such
of the Agents as intend to solicit purchases, have
solicited the purchase or agreed to purchase the
Notes (as the case may be), impracticable to market
the Notes or enforce contracts for the sale of the
Notes;
(A) except, in each case described in paragraph (ii),(iii)
or (iv) above, as disclosed to the relevant Agent by the
Company prior to such solicitation or, in the case of a
purchase of Notes, as disclosed to the relevant Agent before
the offer to purchase such Notes was made or (B) unless in
each case described in (ii), (iii) or (iv) above, the
relevant event shall have occurred and been known to the
relevant Agent prior to such solicitation or, in the case of
a purchase of Notes, to the relevant Agent before the
purchase of such Notes was made.
(b) On the Commencement Date, the Agents shall
have received:
(i) An opinion, dated as of such date, of
the General Counsel or a General Attorney of the
Company, substantially to the effect set forth in
Exhibit D.
(ii) An opinion, dated as of such date, of Davis
Polk & Wardwell, special counsel for the Company,
substantially to the effect set forth in Exhibit E.
(iii) An opinion, dated as of such date, of
Hughes Hubbard & Reed, counsel for the Agents,
with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other
related matters as you reasonably may request. In
rendering the foregoing opinion, such counsel may
rely, to the extent recited therein, as to matters
involving the laws of any jurisdiction other than
the State of New York and the General Corporation
Law of the State of Delaware, upon opinions of
local counsel. Such counsel may also state that
they have relied as to certain matters on
information obtained from public officials,
officers of the Company and other sources believed
by them to be responsible.
(c) If called for by any agreement by an Agent to
purchase Notes as principal, on the corresponding Settlement
Date, the relevant Agents shall have received an opinion of
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<PAGE>
the General Counsel or a General Attorney of the Company,
substantially to the effect set forth in Exhibit D and to
the further effect set forth in paragraphs (iv) and (v) of
Exhibit E, modified if necessary to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion.
(d) On the Commencement Date and, if called for
by any agreement by an Agent to purchase Notes as principal,
on the corresponding Settlement Date, the relevant Agent
shall have received a certificate, dated such Commencement
Date or Settlement Date, as the case may be, signed by an
executive officer of the Company to the effect set forth in
subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained
herein are true and correct in all material respects as of
such date and that the Company has complied in all material
respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or
before such date.
The officer signing and delivering such
certificate may rely upon the best of his knowledge as to
proceedings threatened.
(e) On the Commencement Date and, if called for
by any agreement by an Agent to purchase Notes as principal,
on the corresponding Settlement Date, the Company's
independent public accountants shall have furnished to the
relevant Agents a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may
be, in form and substance satisfactory to such Agents,
containing statements and information of the type ordinarily
included in accountant's "comfort letters" to underwriters
with respect to the financial statements and certain
financial information contained in or incorporated by
reference into the Prospectus, as then amended or
supplemented.
5. Additional Agreements of the Company. Each
time the Registration Statement or Prospectus is amended or
supplemented as to the Notes by the filing of a
post-effective amendment with the Commission or by the
filing of a Form 10-Q, Form 10-K or Form 8-K pursuant to
Section 13 of the 1934 Act, the Company will deliver or
cause to be delivered forthwith to each Agent requesting the
same the following documents:
(i) a certificate signed by an executive
officer of the Company, of the same tenor as the
certificate referred to in Section 4(d), but
16
<PAGE>
modified to relate to the Registration Statement
or the Prospectus as amended or supplemented to
the time of delivery of such certificate;
(ii) written opinion of counsel for the
Company, of the same tenor as the opinion referred
to in Section 4(c), but modified to relate to the
Registration Statement and the Prospectus as
amended and supplemented to the time of delivery
of such opinion; provided that, in lieu of such
opinion, the counsel last furnishing such an
opinion to an Agent may furnish to each Agent a
letter to the effect that such Agent may rely on
such last opinion to the same extent as though it
were dated the date of such letter (except that
statements in such last opinion will be deemed to
relate to the Registration Statement and the
Prospectus as amended or supplemented to the time
of delivery of such letter); and
(iii) if such post-effective amendment or Form
8-K contains new, amended or supplemental
financial information and upon every filing of a
Form 10-Q or Form 10-K, a letter from the
Company's independent public accountants, of the
same tenor as the letter referred to in Section
4(e), with regard to any amended or supplemental
financial information included or incorporated by
reference in the Registration Statement or the
Prospectus as amended or supplemented to the date
of such letter.
6. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Agent and
each person, if any, who controls any Agent within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue
statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or any omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of or based upon any untrue
statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made, not
17
<PAGE>
misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in
reliance upon and in conformity with written
information furnished to the Company by any Agent
through you expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or was made in
reliance upon the Form T-1 of the Trustee under the
Indenture;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the
aggregate amount paid in settlement of any litigation
or investigation or proceeding commenced or threatened,
by any governmental agency or body or of any claim
whatsoever, arising out of or based upon any such
untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel chosen
by you) reasonably incurred in investigating, preparing
or defending against any litigation, or investigation
or proceeding commenced or threatened by any
governmental agency or body or any claim whatsoever,
arising out of or based upon any such untrue statement
or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not
paid under (i) or (ii) above.
The foregoing indemnity with respect to any untrue
statement contained in or omission from any prospectus shall
not inure to the benefit of any Agent (or any person
controlling any Agent) from whom the person asserting any
such loss, liability, claim or damages purchased any of the
Notes which are the subject thereof if the untrue statement
contained in or omission from any prospectus was corrected
in a prospectus supplement (or any amendment or supplement
thereto) but such person did not receive a copy of such
prospectus supplement (or such amendment or supplement
thereto) at or prior to confirmation of the sale of such
Notes to such person in any case where such delivery is
required by the 1933 Act.
(b) Each Agent severally agrees to indemnify and
hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning
18
<PAGE>
of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but
only with respect to any untrue statement or omission or
alleged untrue statement or omission made in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such Agent through you expressly
for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified person shall give prompt
notice to each indemnifying person of any action commenced
against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying person
shall not relieve it from any liability which it may have
hereunder or otherwise than on account of this indemnity
agreement. An indemnifying person may participate at its
own expense in the defense of such action. If it so elects
within a reasonable time after receipt of such notice, an
indemnifying person, jointly with any other indemnifying
persons receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the
indemnified persons defendant in such action, unless such
indemnified person reasonably object to such assumption on
the ground that there may be legal defenses available to it
or them which are different from or in addition to those
available to such indemnifying person. If any indemnifying
person assumes the defense of such action, the indemnifying
persons shall not be liable hereunder for any fees and
expenses of counsel for the indemnified persons incurred
thereafter in connection with such action unless incurred at
the written request of the indemnifying person. In no event
shall the indemnifying person be liable for the fees and
expenses of more than one counsel for all indemnified
persons in connection with any one action or separate but
similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
(d) The indemnification agreements provided in
this Section 6 shall remain operative and in full force and
effect regardless of any termination or cancellation of this
Agreement.
(e) In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in this Section 6 is for any reason
held to be unenforceable by the indemnified persons although
applicable in accordance with its terms, the Company and the
19
<PAGE>
Agents of each offering of Notes shall contribute to the
aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Agents in
respect of such offering in such proportions as will reflect
the relative benefits from the offering of such Notes
received by the Company on the one hand and by such Agents
on the other hand, provided that the relative benefits
received by the Company on the one hand and each Agent on
the other hand in connection with the offering of such Notes
shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to
the total discounts and commissions received by each Agent
in respect thereof; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Agent within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Agent and each director of
the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the
Company. Any person entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit
or proceeding against such person in respect of which a
claim for contribution may be made against another person or
persons under this Section 6, notify such person or persons
from whom contribution may be sought, but the omission so to
notify such person or persons from whom contribution may be
sought shall not relieve the person or persons from whom
contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this
Section 6. No person shall be liable with respect to any
action or claim settled without its written consent.
7. Position of the Agents. In acting under this
Agreement and in connection with the sale of any Notes by
the Company (other than Notes sold to an Agent as
principal), each Agent is acting solely as agent of the
Company and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes.
An Agent shall use its reasonable efforts to assist the
Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not have any
liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall
20
<PAGE>
default in its obligations to deliver Notes to a purchaser
whose offer it has accepted and who has tendered payment for
the Notes, the Company shall hold the relevant Agent
harmless against any loss, claim, damage or liability
arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have
received had such sale been consummated. The Company
expressly reserves the right to appoint additional Agents
(as provided in Section 12) and sell Notes directly from
time to time on its own behalf or through other broker-dealers.
8. Termination. This Agreement may be
terminated for any reason at any time by the Company or, as
to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties
hereto, but without prejudice to any rights, obligations or
liabilities of any party hereto or other person hereunder
accrued or incurred prior to such termination. The
termination of this Agreement shall not constitute
termination of any agreement by an Agent to purchase Notes
as principal, and the termination of any such agreement
shall not constitute termination of this Agreement. If this
Agreement is terminated, the provisions of the third
paragraph of Section 2(a), Section 2(e), the last sentence
of Section 3(b) and Sections 3(c), 3(f), 6, 7, 8, 9, 11 and
14 shall survive; provided that if at the time of
termination an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its
agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(g), 4 and 5 shall also
survive until such delivery has been made.
9. Representations and Indemnities to Survive.
The respective indemnity and contribution agreements,
representations, warranties and other statements of the
Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to
purchase Notes as principal will remain in full force and
effect, regardless of any termination of this Agreement or
any such agreement, any investigation made by or on behalf
of an Agent or the Company or any of the officers, directors
or controlling persons referred to in Section 6 and delivery
of and payment for the Notes.
10. Notices. All communications hereunder will
be in writing and effective only on receipt, and, if sent to
any Agent, will be mailed, delivered or telefaxed and
confirmed to such Agent at its address or telefax number
listed on the signature page hereof or, if sent to the
Company, will be mailed, delivered or telefaxed and
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<PAGE>
confirmed to the Company at 17001 Northchase Drive, Houston,
Texas 77060, Attention: Senior Vice President, Finance
(telefax number 713-874-3296), or at such other address as
the Company or any Agent may notify the others in writing.
11. Successors. This Agreement and any Terms
Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent
expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Amendments and Additional Agents. This
Agreement may be amended or supplemented if, but only if,
such amendment or supplement is in writing and is signed by
the Company and each Agent; provided, however, that the
Company expressly reserves the right, upon written notice to
each Agent but without the consent of any Agent, to appoint
any other person, partnership or corporation (an "Additional
Agent") to act as its agent to solicit offers for the
purchase of Notes; provided that each Additional Agent shall
either execute this Agreement and become a party hereto or
shall enter into an agency agreement with the Company on
terms substantially similar to those contained herein,
including but not limited to the commission schedule set
forth in Section 2(a) hereof; thereafter the term Agent as
used in this Agreement shall mean the Agent and such
Additional Agent.
13. Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
15. Headings. The headings of the sections of
this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this
Agreement.
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<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed counterparts hereof, whereupon this letter and
your acceptance shall represent a binding agreement between
the Company and you.
Very truly yours,
ANADARKO PETROLEUM CORPORATION
By_________________________
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CS FIRST BOSTON CORPORATION
By__________________________
Title:
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Short and Medium-Term Finance
Robert W. Mitchell
Telefax: (212) 318-1498
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By__________________________
Title:
World Financial Center
250 Vesey Street, 10th Floor
New York, New York 10281
Telefax: (212) 449-2234
PAINEWEBBER INCORPORATED
By__________________________
Name: Charles H. Prioleau
Title: Vice President
1285 Avenue of the Americas
New York, New York 10019
Attn: Peter Abramenko
Telephone: (212) 713-2982
Telefax: (212) 713-4893
23
<PAGE>
Exhibit A
ANADARKO PETROLEUM CORPORATION
MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
_________________, 19__
Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060
Attention:
Re: Distribution Agreement dated __________, 1995
(the "Distribution Agreement")
We agree to purchase, severally and not jointly,
the principal amount of Medium-Term Notes, Series A (the
"Notes") set forth below opposite our names:
Principal Amount
Name of Notes
[Insert syndicate list]
Total . . . . . . $
===========
1
<PAGE>
The Notes shall have the following terms:
All Notes: Fixed Rate Notes: Floating Rate Notes:
Principal Interest Rate: Base rate:
amount:
Applicability Index
Purchase of modified maturity:
price: payment upon
acceleration: Spread:
Price to
public: If yes, dates Spread
amounts: multiplier:
Settlement
date and time: Amortization Alternate rate
schedule: event spread:
Place of
delivery: Initial interest
rate:
Specified
currency: Initial interest
reset date:
Convertible at
holders' option: Interest reset
dates:
Stated Maturity:
Initial accrual Maximum interest
period OID: rate:
Yield to maturity: Minimum interest
rate:
Interest reset
period:
Optional repayment
dates and prices: Interest payment
period:
Initial redemption
date: Interest payment
date(s):
Initial redemption
price:
Annual redemption
percentage
decrease:
Other terms:
The provisions of Sections 1, 2(b) and 2(c) and 3
through 6, 9, 10, 11 and 14 of the Distribution Agreement
A-2
<PAGE>
and the related definitions are incorporated by reference
herein and shall be deemed to have the same force and effect
as if set forth in full herein.
If on or before the Settlement Date any Agent or
Agents shall default in its or their obligation to take up
and pay for the Notes to be purchased by it or them hereunder
and
(i) the aggregate principal amount of Notes
which the defaulting Agents agreed but failed to
purchase is 10% or less of the aggregate principal
amount of the Notes to be purchased hereunder, then
the non-defaulting Agents whether one or more, or
the Company, may make arrangements satisfactory to
the Company and the majority in interest of the
non-defaulting Agents for the purchase of such
Notes by other persons, including any of the
non-defaulting Agents, but if no such arrangements
are made by the Settlement Date, the non-defaulting
Agents shall be obligated severally, in proportion
to their respective commitments hereunder, to
purchase the Notes which the defaulting Agents
agreed but failed to purchase; provided that in no
event shall the principal amount of Notes which any
non-defaulting Agent has agreed to purchase
hereunder be increased by an amount in excess of
one-ninth of such principal amount, without the
written consent of such non-defaulting Agent; or
(ii) the aggregate principal amount of the
Notes which the defaulting Agents agreed but failed
to purchase is more than 10% of the aggregate
principal amount of the Notes to be purchased
hereunder and arrangements satisfactory to the
Company and the majority in interest of the
non-defaulting Agents for the purchase of such
Notes are not made by the non-defaulting Agents or
the Company within thirty-six hours after such
default, then this Agreement will terminate without
liability on the part of the non-defaulting Agents
or the Company.
Without relieving any defaulting Agent from its
obligations hereunder, the Company agrees with the
non-defaulting Agents that it will not sell any Notes
hereunder unless all such Notes are purchased by the Agents
(including Additional Agents).
A-3
<PAGE>
In the event of an occurrence described in clauses
(i) or (ii) above, either the Company or the majority in
interest of the non-defaulting Agents shall have the right to
postpone the Settlement Date but in no event for longer than
seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or in any other
document or arrangement may be effected. Any action taken
under this paragraph shall not relieve any defaulting Agent
from liability in respect of any default of such Agent under
this Agreement.
This Agreement is subject to termination on the
terms incorporated by reference herein. If this Agreement is
so terminated, the provisions of Sections 3(g), 6, 9, 11 and
14 of the Distribution Agreement shall survive for the
purposes of this Agreement.
[NAMES OF AGENTS]
By ______________________________
Title:
Accepted:
ANADARKO PETROLEUM CORPORATION
By ________________________
Title:
A-4
<PAGE>
EXHIBIT B
ANADARKO PETROLEUM CORPORATION
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures
and specific terms of the offering of Medium-Term Notes,
Series A (the "Notes"), on a continuous basis by Anadarko
Petroleum Corporation (the "Company") pursuant to the
Distribution Agreement, dated as of March 9, 1995 (the
"Distribution Agreement") between the Company and the Agents
named therein (the "Agents"). The Notes will be issued
under an Indenture dated as of March 1, 1995 (the
"Indenture") between the Company and The Chase Manhattan
Bank, N.A., as trustee (the "Trustee"). In the Distribution
Agreement, each Agent has agreed to use reasonable efforts
to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and
settlement of any Notes sold through the Agents, as agents
of the Company. Each Agent, as principal, may also purchase
Notes for its own account, and if requested by any Agent,
the Company and such Agent will enter into a terms agreement
(a "Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below
will govern the issuance and settlement of any Notes
purchased by any Agent as principal, unless otherwise
specified in the applicable Terms Agreement. Capitalized
terms used but not defined herein are used as defined in the
Distribution Agreement.
The Trustee will be the Registrar, Calculation
Agent, Authenticating Agent and Paying Agent for the Notes
and will perform the duties specified herein. Each Note
will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a person designated by
such holder (a "Certificated Note"). Except as set forth in
B-1
<PAGE>
the Indenture, an owner of a Book-Entry Note will not be
entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in
U.S. dollars, will be issued in accordance with the
administrative procedures set forth in Part I hereof as they
may subsequently be amended as the result of changes in
DTC's operating procedures. Certificated Notes will be
issued in accordance with the administrative procedures set
forth in Part II hereof. Unless otherwise defined herein,
terms defined in the Indenture, the Notes or any Prospectus
Supplement relating to the Notes shall be used herein as
therein defined.
The Company will advise each Agent in writing of
the employees of the Company with whom such Agent is to
communicate regarding offers to purchase Notes and the
related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry system
maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described
below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to
DTC, dated as of March 9, 1995 (the "Letter of
Representation"), and a Medium-Term Note Certificate
Agreement between the Trustee and DTC and its obligations as
a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as
defined under "Settlement" below)
for one or more Book-Entry Notes,
the Company will issue a single
global security in fully registered
form without coupons (a "Global
Security") representing up to U.S.
$200,000,000 principal amount of
all such Notes that have the same
Original Issue Date, Maturity Date
and other terms. Each Global
Security will be dated and issued
as of the date of its
authentication by the Trustee.
Each Global Security will bear an
"Interest Accrual Date," which will
B-2
<PAGE>
be (i) with respect to an original
Global Security (or any portion
thereof), its original issuance
date and (ii) with respect to any
Global Security (or any portion
thereof) issued subsequently upon
exchange of a Global Security, or
in lieu of a destroyed, lost or
stolen Global Security, the most
recent Interest Payment Date to
which interest has been paid or
duly provided for on the
predecessor Global Security or
Securities (or if no such payment
or provision has been made, the
original issuance date of the
predecessor Global Security),
regardless of the date of
authentication of such subsequently
issued Global Security. Book-Entry
Notes may be payable only in U.S.
dollars. No Global Security will
represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of U.S. $100,000
or any amount in excess thereof
that is an integral multiple of
U.S. $1,000. Global Securities
will be denominated in principal
amounts not in excess of U.S.
$200,000,000. If one or more
Book-Entry Notes having an
aggregate principal amount in
excess of $200,000,000 would, but
for the preceding sentence, be
represented by a single Global
Security, then one Global Security
will be issued to represent each
U.S. $200,000,000 principal amount
of such Book-Entry Note or Notes
and an additional Global Security
will be issued to represent any
remaining principal amount of such
Book-Entry Note or Notes. In such
a case, each of the Global
Securities representing such
Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Preparation If any order to purchase a Book-
B-3
<PAGE>
of Pricing Entry Note is accepted by or on
Supplement: behalf of the Company, the Company
will prepare a pricing supplement
(a "Pricing Supplement") reflecting
the terms of such Note. The
Company (i) will arrange to file 10
copies of such Pricing Supplement
with the Commission in accordance
with the applicable paragraph of
Rule 424(b) under the Act, (ii)
will, as soon as possible and in
any event not later than the date
on which such Pricing Supplement is
filed with the Commission, deliver
the number of copies of such
Pricing Supplement to the relevant
Agent as such Agent shall request.
Such Agent will cause such Pricing
Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing
Supplement is prepared, the
relevant Agent will affix the
Pricing Supplement to Prospectuses
prior to their use. Outdated
Pricing Supplements, and the
Prospectuses to which they are
attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of
immediately available funds in
payment for a Book-Entry Note and
the authentication and issuance of
the Global Security representing
such Note shall constitute
"settlement" with respect to such
Note. All orders accepted by the
Company will be settled on the
fifth Business Day pursuant to the
timetable for settlement set forth
below unless the Company and the
purchaser agree to settlement on
another day, which shall be no
earlier than the next Business Day.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the
Company to or through any Agent
(unless otherwise specified
B-4
<PAGE>
pursuant to a Terms Agreement),
shall be as follows:
A. Such Agent will advise the
Company by telephone that such
Note is a Book-Entry Note and
of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed
Rate Book-Entry Note, the
Interest Rate, whether
such Note will pay
interest annually or
semiannually, or, in the
case of a Floating Rate
Book-Entry Note, the
Initial Interest Rate (if
known at such time),
Interest Payment Date(s),
Interest Payment Period,
Calculation Agent, Base
Rate, Index Maturity,
Interest Reset Period,
Initial Interest Reset
Date, Interest Reset
Dates, Spread or Spread
Multiplier (if any),
Minimum Interest Rate (if
any) and Maximum Interest
Rate (if any).
4. Redemption or repayment
provisions, if any.
5. Whether the Company has
the option to reset the
Interest Rate, the Spread
or the Spread Multiplier
of the Note.
6. Settlement date and time
(Original Issue Date).
7. Interest Accrual Date.
8. Price.
B-5
<PAGE>
9. Agent's commission, if
any, determined as
provided in the
Distribution Agreement.
10. Any other applicable
terms.
B. The Company will advise the
Trustee by telephone or
electronic transmission
(confirmed in writing at any
time on the same date) of the
information set forth in
Settlement Procedure "A"
above. The Trustee will then
assign a CUSIP number to the
Global Security representing
such Note and will notify the
Company and such Agent of such
CUSIP number by telephone as
soon as practicable.
C. The Trustee will enter a
pending deposit message
through DTC's Participant
Terminal System, providing the
following settlement
information to DTC, such Agent
and Standard & Poor's
Corporation:
1. The information set forth
in Settlement Procedure
"A".
2. The Initial Interest
Payment Date for such
Note, the number of days
by which such date
succeeds the related DTC
Record Date (which in the
case of Floating Rate
Notes which reset daily
or weekly, shall be the
date five calendar days
immediately preceding the
applicable Interest
Payment Date and, in the
case of all other Notes,
shall be the Record Date
B-6
<PAGE>
as defined in the Note) and,
if known, the amount of
interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the
Global Security
representing such Note.
4. Whether such Global
Security will represent
any other Book-Entry Note
(to the extent known at
such time).
5. The number of Participant
accounts to be maintained
by DTC on behalf of such
Agent and the Trustee.
D. The Trustee will complete and
authenticate the Global
Security representing such
Note.
E. DTC will credit such Note to
the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit
such Note to the Trustee's
participant account and credit
such Note to such Agent's
participant account and (ii)
debit such Agent's settlement
account and credit the
Trustee's settlement account
for an amount equal to the
price of such Note less such
Agent's commission, if any.
The entry of such a deliver
order shall constitute a
representation and warranty by
the Trustee to DTC that (a)
the Global Security
representing such Book-Entry
Note has been issued and
B-7
<PAGE>
authenticated and (b) the
Trustee is holding such Global
Security pursuant to the
Medium Term Note Certificate
Agreement between the Trustee
and DTC.
G. Unless such Agent is the end
purchaser of such Note, such
Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit
such Note to such Agent's
participant account and credit
such Note to the participant
accounts of the Participants
with respect to such Note and
(ii) to debit the settlement
accounts of such Participants
and credit the settlement
account of such Agent for an
amount equal to the price of
such Note.
H. Transfers of funds in
accordance with SDFS deliver
orders described in Settlement
Procedures "F" and "G" will be
settled in accordance with
SDFS operating procedures in
effect on the settlement date.
I. The Trustee will credit to the
account of the Company
maintained at Chemical Bank,
New York, New York, in funds
available for immediate use in
the amount transferred to the
Trustee in accordance with
Settlement Procedure "F".
J. Unless such Agent is the end
purchaser of such Note, such
Agent will confirm the
purchase of such Note to the
purchaser either by
transmitting to the
Participants with respect to
such Note a confirmation order
or orders through DTC's
B-8
<PAGE>
institutional delivery system
or by mailing a written
confirmation to such
purchaser.
K. Monthly, the Trustee will send
to the Company a statement
setting forth the principal
amount of Notes outstanding as
of that date under the
Indenture and setting forth a
brief description of any sales
of which the Company has
advised the Trustee that have
not yet been settled.
Settlement For sales by the Company of Book-
Procedures Entry Notes to or through any
Timetable: Agent (unless otherwise specified
pursuant to a Terms Agreement) for
settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "J" set
forth above shall be completed as
soon as possible but not later than
the respective times in New York
City set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more
than one Business Day after the
sale date, Settlement Procedures
"A", "B" and "C" shall be completed
as soon as practicable but no later
than 11:00 A.M., 12 Noon and 2:00
P.M., respectively, on the first
Business Day after the sale date.
If the Initial Interest Rate for a
Floating Rate Book-Entry Note has
not been determined at the time
B-9
<PAGE>
that Settlement Procedure "A" is
completed, Settlement Procedure "B"
and "C" shall be completed as soon
as such rate has been determined
but no later than 12 Noon and 2:00
P.M., respectively, on the first
Business Day before the settlement
date. Settlement Procedure "H" is
subject to extension in accordance
with any extension of Fedwire
closing deadlines and in the other
events specified in the SDFS
operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note
is rescheduled or canceled, the
Trustee, after receiving notice
from the Company or the relevant
Agent, will deliver to DTC, through
DTC's Participant Terminal System,
a cancellation message to such
effect by no later than 2:00 P.M.
on the Business Day immediately
preceding the scheduled settlement
date.
Failure to If the Trustee fails to enter an
Settle: SDFS deliver order with respect to
a Book-Entry Note pursuant to
Settlement Procedure "F", the
Trustee may deliver to DTC, through
DTC's Participant Terminal System,
as soon as practicable a withdrawal
message instructing DTC to debit
such Note to the Trustee's
participant account, provided that
the Trustee's participant account
contains a principal amount of the
Global Security representing such
Note that is at least equal to the
principal amount to be debited.
If a withdrawal message is
processed with respect to all the
Book-Entry Notes represented by a
Global Security, the Trustee will
mark such Global Security
"canceled," make appropriate
entries in the Trustee's records
and send such canceled Global
Security to the Company. The CUSIP
B-10
<PAGE>
number assigned to such Global
Security shall, in accordance with
the procedures of the CUSIP Service
Bureau of Standard & Poor's
Corporation, be canceled and not
immediately reassigned. If a
withdrawal message is processed
with respect to one or more, but
not all, of the Book-Entry Notes
represented by a Global Security,
the Trustee will exchange such
Global Security for two Global
Securities, one of which shall
represent such Book-Entry Note or
Notes and shall be canceled
immediately after issuance and the
other of which shall represent the
remaining Book-Entry Notes
previously represented by the
surrendered Global Security and
shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any
Book-Entry Note is not timely paid
to the Participants with respect to
such Note by the beneficial
purchaser thereof (or a person,
including an indirect participant
in DTC, acting on behalf of such
purchaser), such Participants and,
in turn, the relevant Agent may
enter SDFS deliver orders through
DTC's Participant Terminal System
reversing the orders entered
pursuant to Settlement Procedures
"F" and "G", respectively.
Thereafter, the Trustee will
deliver the withdrawal message and
take the related actions described
in the preceding paragraph.
Notwithstanding the foregoing, upon
any failure to settle with respect
to a Book-Entry Note, DTC may take
any actions in accordance with its
SDFS operating procedures then in
effect.
In the event of a failure to settle
with respect to one or more, but
B-11
<PAGE>
not all, of the Book-Entry Notes to
have been represented by a Global
Security, the Trustee will provide,
in accordance with Settlement
Procedures "D" and "F", for the
authentication and issuance of a
Global Security representing the
Book-Entry Notes to be represented
by such Global Security and will
make appropriate entries in its
records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection
with the Certificated Notes.
Issuance: Each Certificated Note will be
dated and issued as of the date of
its authentication by the Trustee.
Each Certificated Note will bear an
Original Issue Date, which will be
(i) with respect to an original
Certificated Note (or any portion
thereof), its original issuance
date (which will be the settlement
date) and (ii) with respect to any
Certificated Note (or portion
thereof) issued subsequently upon
transfer or exchange of a
Certificated Note or in lieu of a
destroyed, lost or stolen
Certificated Note, the original
issuance date of the predecessor
Certificated Note, regardless of
the date of authentication of such
subsequently issued Certificated
Note.
Preparation If any order to purchase a Certifi-
of Pricing cated Note is accepted by or on
Supplement: behalf of the Company, the Company
will prepare a pricing supplement
(a "Pricing Supplement") reflecting
the terms of such Note. The
Company (i) will arrange to file 10
copies of such Pricing Supplement
with the Commission in accordance
with the applicable paragraph of
Rule 424(b) under the Act, (ii)
B-12
<PAGE>
will, as soon as possible and in
any event not later than the date
on which such Pricing Supplement is
filed with the Commission, deliver
the number of copies of such
Pricing Supplement to the relevant
Agent as such Agent shall request.
Such Agent will cause such Pricing
Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing
Supplement is prepared, such Agent
will affix the Pricing Supplement
to Prospectuses prior to their use.
Outdated Pricing Supplements, and
the Prospectuses to which they are
attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of
immediately available funds in
exchange for an authenticated
Certificated Note delivered to the
relevant Agent and such Agent's
delivery of such Note against
receipt of immediately available
funds shall constitute "settlement"
with respect to such Note. All
offers accepted by the Company will
be settled on or before the fifth
Business Day next succeeding the
date of acceptance pursuant to the
timetable for settlement set forth
below, unless the Company and the
purchaser agree to settlement on
another date.
Settlement Settlement Procedures with regard
Procedures: to each Certificated Note sold by
the Company to or through the
relevant Agent (unless otherwise
specified pursuant to a Terms
Agreement) shall be as follows:
A. Such Agent will advise the
Company by telephone that such
Note is a Certificated Note
and of the following
settlement information:
B-13
<PAGE>
1. Name in which such Note
is to be registered
("Registered Owner").
2. Address of the Registered
Owner and address for
payment of principal and
interest.
3. Taxpayer identification
number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed
Rate Certificated Note,
the Interest Rate,
whether such Note will
pay interest annually or
semiannually, or, in the
case of a Floating Rate
Certificated Note, the
Initial Interest Rate (if
known at such time),
Interest Payment Date(s),
Interest Payment Period,
Calculation Agent, Base
Rate, Index Maturity,
Interest Reset Period,
Initial Interest Reset
Date, Interest Reset
Dates, Spread or Spread
Multiplier (if any),
Minimum Interest Rate (if
any) and Maximum Interest
Rate (if any).
7. Redemption or repayment
provisions, if any.
8. Whether the Company has
the option to reset the
Interest Rate, the Spread
or the Spread Multiplier
of the Note.
9. Settlement date and time
(Original Issue Date).
B-14
<PAGE>
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if
any, determined as
provided in the
Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Any other applicable
B. The Company will advise the
Trustee by telephone or
electronic transmission
(confirmed in writing at any
time on the sale date) of the
information set forth in
Settlement Procedure "A"
above.
C. The Company will have
delivered to the Trustee a
pre-printed four-ply packet
for such Note, which packet
will contain the following
documents in forms that have
been approved by the Company,
such Agent and the Trustee:
1. Note with customer
confirmation.
2. Stub One - For the
Trustee.
3. Stub Two - For such
Agent.
4. Stub Three - For the
Company.
D. The Trustee will complete such
Note and authenticate and
deliver it (with the
confirmation) and Stubs One
and Two to such Agent, and
such Agent will acknowledge
B-15
<PAGE>
receipt of the Note by
stamping or otherwise marking
Stub One and returning it to
the Trustee. Such delivery
will be made only against such
acknowledgment of receipt and
evidence that instructions
have been given by such Agent
for payment to the account of
the Company at Chemical Bank,
New York, New York, or to such
other account as the Company
shall have specified to such
Agent and the Trustee in funds
available for immediate use,
of an amount equal to the
price of such Note less such
Agent's commission, if any.
In the event that the
instructions given by such
Agent for payment to the
account of the Company are
revoked, the Company will as
promptly as possible wire
transfer to the account of
such Agent an amount of
immediately available funds
equal to the amount of such
payment made.
E. Unless such Agent is the end
purchaser of such Note, such
Agent will deliver such Note
(with confirmation) to the
customer against payment in
immediately payable funds.
Such Agent will obtain the
acknowledgment of receipt of
such Note by retaining Stub
Two.
F. The Trustee will send Stub
Three to the Company by
first-class mail.
Periodically, the Trustee will
also send to the Company a
statement setting forth the
principal amount of the Notes
outstanding as of that date
under the Indenture and
setting forth a brief
B-16
<PAGE>
description of any sales of
which the Company has advised
the Trustee that have not yet
been settled.
Settlement For sales by the Company of Certi-
Procedures ficated Notes to or through such
Timetable: Agent (unless otherwise specified
pursuant to a Terms Agreement),
Settlement Procedures "A" through
"F" set forth above shall be
completed on or before the
respective times in New York City
set forth below:
Settlement
Procedure Time
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept
delivery delivery of and make payment for
to Settle: any Certificated Note, the relevant
Agent will notify the Company and
the Trustee by telephone and return
such Note to the Trustee. Upon
receipt of such notice, the Company
will immediately wire transfer to
the account of such Agent an amount
equal to the amount previously
credited thereto in respect of such
Note. Such wire transfer will be
made on the settlement date, if
possible, and in any event not
later than the Business Day
following the settlement date. If
the failure shall have occurred for
any reason other than a default by
such Agent in the performance of
its obligations hereunder and under
the Distribution Agreement, then
the Company will reimburse such
Agent or the Trustee, as
appropriate, on an equitable basis
B-17
<PAGE>
for its loss of the use of the
funds during the period when they
were credited to the account of the
Company. Immediately upon receipt
of the Certificated Note in respect
of which such failure occurred, the
Trustee will mark such Note
"canceled," make appropriate
entries in the Trustee's records
and send such Note to the Company.
B-18
<PAGE>
EXHIBIT C
SIGNIFICANT SUBSIDIARIES
Jurisdiction in
Name Which Organized
Anadarko Algeria Corporation Delaware
C-1
<PAGE>
EXHIBIT D
MATTERS TO BE COVERED IN OPINION OF
GENERAL COUNSEL OR GENERAL ATTORNEY OF THE COMPANY
(i) The Company and each Significant Subsidiary
is duly qualified or licensed and is in good standing
as a foreign corporation in each jurisdiction in which
the ownership or leasing of properties or conduct of
its business requires such qualification or licensing,
except to the extent that the failure to be so
qualified or licensed or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries considered as one enterprise.
(ii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of
its incorporation and has full corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statement.
(iii) The issued and outstanding common stock of
each Significant Subsidiary has been duly authorized
and validly issued and is fully paid and
non-assessable; and the Company owns the issued and
outstanding common stock of each Significant Subsidiary
free and clear of any mortgages, liens or similar
encumbrances, except to the extent set forth in the
Prospectus.
(iv) To the knowledge of such counsel, the
execution and delivery of the Distribution Agreement
and the Indenture, the issuance of the Notes, the
incurrence of the obligations set forth herein and
therein and the consummation of the transactions
therein contemplated do not and will not conflict with
or constitute or result in a breach of, or default
under, (a) any judgment, order or decree of any
domestic government, governmental instrumentality or
court having jurisdiction over the Company, any
Significant Subsidiary, or any of their property, which
is material to such corporations, considered as one
D-1
<PAGE>
enterprise or (b) any provision of any indenture, mortgage
or similar agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which they or
any material part of their property is bound.
(v) Such counsel does not know of any litigation
or any governmental proceeding instituted or threatened
against the Company or any Significant Subsidiary which
would be required to be disclosed in the Prospectus and
which is not disclosed.
(vi) To the best knowledge of such counsel, the
Registration Statement is effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by
the Commission.
(vii) The statements in the Prospectus under the
captions "Description of Debt Securities" and
"Description of Notes" (or similar caption), insofar as
such statements constitute a summary of the legal
matters or documents referred to therein, fairly
present the information called for with respect to such
legal matters or documents.
(viii) (A) Such counsel is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus (except for financial
statements or other financial or statistical data
contained therein as to which such counsel need not
express any opinion) complied as to form when filed
with the Commission in all material respects with the
1934 Act and the 1934 Act Regulations; (B) such counsel
is of the opinion that the Registration Statement and
the Prospectus and any supplements or amendments
thereto (except for financial statements or other
financial or statistical data contained therein as to
which such counsel need not express any opinion) comply
as to form in all material respects with the 1933 Act
and the 1933 Act Regulations; and (C) nothing which has
come to the attention of such counsel in the course of
his representation of the Company has caused him to
believe that any part of the Registration Statement at
the time of the Distribution Agreement or the
applicable Terms Agreement, as the case may be, (except
for financial statements or other financial or
statistical data contained therein as to which such
counsel need not express any belief and except for that
part of the Registration Statement that constitutes the
D-2
<PAGE>
Form T-1 hereinafter referred to) contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
and the Prospectus, as amended or supplemented, if
applicable, does not contain any untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading.
With respect to subparagraph (viii) above, such
counsel may state that his opinion and belief are based upon
his participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements
thereto and the documents incorporated therein and review
and discussion of the contents thereof, but are without
independent check or verification except as specified. Such
counsel may state further that in connection with any
particular offering of Notes, a further Prospectus
supplement containing the specific terms of those Notes as
well as information concerning the price of those Notes
would have to be delivered to a purchaser.
Notwithstanding the foregoing, the opinions called
for above do not require such counsel to address the
application of the Commodity Exchange Act, as amended, or
the rules, regulations or interpretations of the Commodity
Futures Trading Commission to Notes the payments of
principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity
prices, equity indices or other factors.
In rendering the foregoing opinion, such counsel
shall speak only as to the Federal laws of the United
States, the laws of the State of Texas and the General
Corporation Law of the State of Delaware and may rely, to
the extent recited therein, upon opinions of local counsel.
Such counsel may also state that he has relied as to certain
matters on information obtained from public officials,
officers of the Company and other sources believed by him to
be responsible.
D-3
<PAGE>
EXHIBIT E
MATTERS TO BE COVERED IN OPINION OF
DAVIS POLK & WARDWELL
SPECIAL COUNSEL FOR THE COMPANY
(i) The Company is duly incorporated and validly
existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has the corporate power and
corporate authority to own, lease and operate its
properties and conduct its business as described in the
Prospectus.
(iii) The Distribution Agreement has been duly
authorized, executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee,
is a valid and binding agreement, enforceable against
the Company in accordance with its terms, except as (i)
may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii)
rights of acceleration and availability of equitable
remedies may be limited by equitable principles of
general applicability.
(v) The Notes have been duly authorized and
executed by the Company, and, when executed and
authenticated in accordance with the terms of the
applicable Indenture and delivered against payment
pursuant to this Agreement will be valid and legally
binding obligations of the Company, enforceable in
accordance with their terms, except as (i) may be
limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights
of acceleration and availability of equitable remedies
may be limited by equitable principles of general
applicability.
(vi) The Indenture has been duly qualified under
the 1939 Act.
E-1
<PAGE>
(vii) To the best of their knowledge, the
Registration Statement is effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by
the Commission.
(viii) No regulatory consent, authorization,
approval or filing is required by the laws of the
United States, the State of New York or by the General
Corporation Law of the State of Delaware for the
issuance, sale and delivery of the Notes to the Agents
except such as have been obtained or made under the
1933 Act, the 1934 Act, the 1939 Act and other
applicable legislation specified in such opinion and
such as may be required under state securities or Blue
Sky laws in connection with the solicitation of offers
for and/or purchase and distribution of the Notes by
you.
(ix) The execution and delivery of the
Distribution Agreement and the Indenture, the issuance
of Notes, the incurrence of the obligations set forth
therein, and the consummation of the transactions
therein contemplated do not and will not conflict with
or constitute or result in a breach of, or default
under, the certificate of incorporation or by-laws of
the Company.
(x) (A) Such counsel is of the opinion that the
Registration Statement and the Prospectus and any
supplements or amendments thereto (except for financial
statements or other financial or statistical data
contained therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the 1933 Act and the 1933 Act
Regulations; and (B) nothing which has come to the
attention of such counsel has caused them to believe
that the Registration Statement at the time of the
Distribution Agreement (except for financial statements
or other financial or statistical data contained
therein as to which such counsel need not express any
belief and except for that part of the Registration
Statement that constitutes the Form T-1 hereinafter
referred to) contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the
Prospectus, as amended or supplemented, if applicable,
contains any untrue statement of a material fact or
omits to state a material fact necessary in order to
E-2
<PAGE>
make the statements therein, in light of the
circumstances under which they were made, not
misleading.
With respect to subparagraph (x) above, such
counsel may state that their opinion and belief are based
upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the
contents thereof, but are without independent check or
verification except as specified. Such counsel may state
further that in connection with any particular offering of
Notes, a further Prospectus Supplement containing the
specific terms of those Notes as well as information
concerning the price of those Notes would have to be
delivered to a purchaser.
Such counsel may point out that paragraphs (v)
(except as to the authorization of the Notes) and (x) do not
address any application of the Commodity Exchange Act,
amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Notes the payments
of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. In addition, for
the purpose of the opinion in paragraph (v) above, such
counsel may assume that (a) the Notes will conform to the
forms attached to the certificate executed by the Secretary
of the Company and will be completed in accordance with the
requirements of the Indenture and the Administrative
Procedures (as defined in the Distribution Agreement) and
(b) none of the terms of the Notes not contained in the
forms examined by us will violate any applicable law or be
unenforceable. In connection with the opinion in paragraph
(v) above, such counsel may note that, as of the date of
this opinion, a judgment for money in an action based on
Notes payable in foreign or composite currencies in a
federal or state court in the United States ordinarily would
be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion
of the foreign or composite currency in which a particular
Note is payable into United States dollars will depend upon
various factors, including which court renders the judgment.
Such counsel may further state that the
conclusions expressed above are based upon facts as they
understand them to exist on the date of the opinion and the
law which is applicable on the date of the opinion.
In rendering the foregoing opinion, special
counsel for the Company shall have received and may rely
E-3
<PAGE>
upon such certificates and other documents and information
as they may reasonably request to pass upon such matters.
In rendering the foregoing opinion or opinions,
such counsel shall speak only as to the federal laws of the
United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware and may
rely, as to matters involving the laws of any other
jurisdiction, upon opinions of local counsel.
E-4
<PAGE>
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0
0
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