<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 1997
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
Anadarko Petroleum Corporation
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<C> <C>
DELAWARE 76-0146568
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
17001 NORTHCHASE DRIVE SUZANNE SUTER
HOUSTON, TEXAS 77060-2141 17001 NORTHCHASE DRIVE
(281) 875-1101 HOUSTON, TEXAS 77060-2141
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (281) 875-1101
NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL TELEPHONE NUMBER,
EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
---------------------
Copies to:
Christopher Mayer
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Edward S. Davis
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
---------------------
Approximate date of commencement of proposed sale to the Public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities...................
Preferred Stock, $1.00 par
value...........................
Depositary Shares representing $300,000,000 100% $300,000,000 $90,910
Preferred Stock.................
Common Stock, $0.10 par value,
and Rights attached thereto.....
=================================================================================================================
</TABLE>
(1) Such amount in U.S. dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial public offering price for all
securities of $300,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, JULY 9, 1997
[ANADARKO LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------------
Anadarko Petroleum Corporation (the "Company") from time to time may offer
its senior debt securities (the "Senior Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities") consisting of debentures, notes
and/or other unsecured evidences of indebtedness (the Senior Debt Securities and
the Subordinated Debt Securities, collectively referred to as the "Debt
Securities"). The Company may also from time to time offer shares of its
Preferred Stock, $1.00 par value (the "Preferred Stock") or Common Stock, $0.10
par value (the "Common Stock"). The aggregate offering price of the Debt
Securities, the Preferred Stock and the Common Stock offered hereby (the
"Securities") will not exceed $300,000,000. The Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the time
of sale and to be set forth in supplements to this Prospectus.
The Company may sell Securities to or through underwriters or dealers
designated from time to time, and also may sell Securities directly to other
purchasers or through agents designated from time to time. See "Plan of
Distribution."
As used herein, Debt Securities shall include securities denominated in
U.S. dollars or, at the option of the Company if so specified in the applicable
Prospectus Supplement, in any other currency, including composite currencies
such as the European Currency Unit. Debt Securities of a series may be issuable
in registered definitive form ("Registered Notes") or in the form of one or more
global securities (each a "Global Note"). The Subordinated Debt Securities will
be subordinated in right of payment to all present and future Senior
Indebtedness (as defined) of the Company. See "Description of Debt Securities --
Subordination."
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, currencies, denominations, maturity,
rate (which may be fixed or variable) and time of payment of interest, if any,
terms for redemption at the option of the Company or the holder, terms for
sinking or purchase fund payments, the initial public offering price, the
conversion price (in the case of Subordinated Debt Securities that may be
convertible into shares of Common Stock of the Company), any listing or proposed
listing on a securities exchange, the names of any underwriters or agents, the
principal amounts, if any, to be purchased by underwriters and the compensation
of such underwriters or agents and the other terms in connection with the
offering and sale of the Debt Securities in respect of which this Prospectus is
being delivered, are set forth in the accompanying Prospectus Supplement
("Prospectus Supplement").
The Prospectus Supplement will also set forth the specific designation,
rights, preferences, privileges and restrictions, including dividend rate (or
manner of calculation thereof), time of payment of dividend, liquidation value,
terms for conversion (if any) into Common Stock, listing (if any) on a
securities exchange, terms for mandatory or optional redemption and any other
specific terms of the series of Preferred Stock in respect of which this
Prospectus is being delivered. If so specified in the Prospectus Supplement, the
Preferred Stock may be represented by Depositary Shares entitling the holder
proportionally to all rights and preferences of the Preferred Stock.
Shares of the Common Stock are listed on the New York Stock Exchange.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is
<PAGE> 3
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED
HEREIN OR THEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN
THE SECURITIES OR AN OFFER TO SELL, OR A SOLICITATION OF ANY OFFER TO BUY,
SECURITIES IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE
DATES.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a registration statement on Form S-3 (together
with all amendments and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended, with respect to the Securities.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Securities and the Company, reference is made to the Registration
Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Commission. Such reports
and other information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
maintains a Web site at http://www.sec.gov that contains reports, proxy and
other information regarding the Registrant. In addition, copies of such reports
and other information concerning the Company may also be inspected and copied at
the library of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act (File No. 1-8968) are incorporated herein by reference: (a)
Form 8-A, filed on September 4, 1986, for registration of Common Stock, (b) Form
8-A, filed on October 5, 1988, for registration of Series A Preferred Stock
Purchase Rights, (c) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (the "Form 10-K"), which contains the consolidated financial
statements of the Company and its subsidiaries by incorporation by reference to
the 1996 Annual Report, (d) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997 and (e) Form 10-K/A, dated June 25, 1997, which contains the
Annual Report of the Anadarko Employee Savings Plan on Form 11-K. All other
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
2
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The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request, a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits unless such exhibits are specifically
incorporated by reference in such documents). Requests for such documents should
be directed to Suzanne Suter, Corporate Secretary, Anadarko Petroleum
Corporation, 17001 Northchase Drive, Houston, Texas 77060-2141. The Company's
telephone number is (281) 875-1101.
3
<PAGE> 5
THE COMPANY
The Company is one of the world's largest independent oil and gas
exploration and production companies with 601 million energy equivalent barrels
of proved reserves as of December 31, 1996.
The Company's reserve mix has shifted dramatically in recent years,
primarily due to major crude oil discoveries both in Algeria and the U.S., which
have resulted in a larger and more balanced portfolio of energy reserves. As of
year-end 1996, crude oil, condensate and natural gas liquids reserves accounted
for 50 percent of the Company's total reserves compared to just six percent at
year-end 1986.
About 80 percent of the Company's proved reserves are located in the U.S.,
primarily in the mid-continent (Kansas, Oklahoma and Texas) area, offshore in
the Gulf of Mexico and in Alaska. Currently, all of the Company's production is
in the U.S. The Company also owns interests in 13 gas gathering systems and four
gas processing plants in the U.S.
Internationally, the Company is exploring for and developing crude oil
reserves in Algeria's Sahara Desert. As of December 31, 1996, the Company has
recorded 124.3 million barrels of proved crude oil and condensate reserves in
Algeria, which accounts for about 20 percent of Anadarko's total proved
reserves. Development operations are now underway. The Company is also
participating in other exploration projects in Eritrea, Jordan and Peru.
The Company's executive offices are located at 17001 Northchase Drive,
Houston, Texas 77060-2141, where the telephone number is (281) 875-1101.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement relating to an
offering of Securities, the net proceeds from the sale of the Securities will be
used for general corporate purposes, including the refinancing of outstanding
indebtedness and the financing of capital expenditures. Any specific allocation
of the net proceeds of an offering of Securities to a specific purpose will be
determined at the time of such offering and will be described in the related
Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods shown.
<TABLE>
<CAPTION>
THREE MONTHS
YEARS ENDED DECEMBER 31 ENDED
---------------------------------------------------- MARCH 31,
1992 1993 1994 1995 1996 1997
-------- -------- -------- -------- -------- ------------
<S> <C> <C> <C> <C> <C>
1.81 2.68 2.11 1.24 3.34 4.18
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings include income before income taxes
and fixed charges. Fixed charges include interest and amortization of debt
expenses, and the estimated interest component of rentals.
No shares of Preferred Stock were outstanding during any of the periods
presented. Accordingly, the ratio of earnings to fixed charges and preferred
stock dividends for each of the periods presented is the same as the ratio of
earnings to fixed charges.
4
<PAGE> 6
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities will be unsecured obligations of the Company. The
Senior Debt Securities are to be issued under the Indenture (the "Senior
Indenture") to be entered into by and between the Company and Harris Trust and
Savings Bank (the "Senior Trustee") and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities are to be issued under the Indenture (the "Subordinated Indenture")
to be entered into by and between the Company and First Chicago NBD (the
"Subordinated Trustee").
The Senior Indenture and the Subordinated Indenture are sometimes
hereinafter collectively referred to as the "Indentures." The Senior Trustee and
the Subordinated Trustee are sometimes hereinafter collectively referred to as
the "Trustees." References set forth in the following description of Debt
Securities are to sections of both Indentures unless otherwise indicated.
The terms of the Debt Securities include those stated in the applicable
Indentures and those made part of such Indentures by reference to the Trust
Indenture Act of 1939, as amended. The Debt Securities are subject to all such
terms, and prospective purchasers of Debt Securities are referred to the
applicable Indentures and the Trust Indenture Act for a statement of those
terms. The statements under this caption relating to the Debt Securities and the
Indentures are summaries and do not purport to be complete. Such summaries use
certain terms which are defined in the Indentures and are qualified in their
entirety by express reference to the Indentures which have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
GENERAL PROVISIONS APPLICABLE TO BOTH INDENTURES
The Indentures do not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness which may be issued thereunder and
provide that Debt Securities may be issued thereunder from time to time in one
or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby (the "Offered Debt Securities") for
the following terms of the Offered Debt Securities: (1) the title of the Offered
Debt Securities; (2) any limit on the aggregate principal amount of the Offered
Debt Securities; (3) the date or dates on which the Offered Debt Securities will
mature; (4) the rate or rates (which may be fixed or variable) per annum at
which the Offered Debt Securities will bear interest, if any, and the date from
which such interest will accrue; (5) the dates on which any such interest will
be payable and the Regular Record Dates for such Interest Payment Dates; (6) any
mandatory or optional sinking fund or purchase fund or analogous provisions; (7)
if applicable, the date after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or of the Holder thereof
and the other detailed terms and provisions of such optional or mandatory
redemption; (8) if applicable, any terms by which the Subordinated Securities
may be convertible into Common Stock; (9) any restrictive covenants included for
the benefit of Holders of the Offered Debt Securities; (10) any additional
Events of Default provided with respect to the Offered Debt Securities; (11) the
currency of payment of the principal of, premium, if any, and interest on the
Offered Debt Securities; (12) any index used to determine the amount of payments
of the principal of, premium, if any, and interest on the Offered Debt
Securities; (13) whether the Offered Debt Securities are to be issued in whole
or part in the form of a Global Note or Notes and, if so, the identity of the
Depositary for such Global Note or Notes; (14) the terms and conditions, if any,
upon which a Global Note or Notes may be exchanged in whole or in part for other
definitive Offered Debt Securities; and (15) any other terms of the Offered Debt
Securities. (Section 301)
5
<PAGE> 7
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the principal of, premium, if any, and interest on the Offered Debt Securities
will be payable, and the Offered Debt Securities will be exchangeable and
transfers thereof will be registrable, at the applicable Corporate Trust Offices
of the Trustees, provided that at the option of the Company, payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as it appears in the Security Register. (Sections 202, 305 and 1002)
The Prospectus Supplement relating to a series of Offered Debt Securities
will specify the currency or currencies in which the principal and interest are
to be paid, the denomination of the Offered Debt Securities and whether Global
Notes are to be issued. (Section 302) Special provisions relating to a series of
Offered Debt Securities denominated in or payable by reference to a currency
other than U.S. dollars, and any applicable currency exchange and tax
information, will be described in the Prospectus Supplement relating to such
series. No service charge will be made for any registration of transfer or
exchange of the Offered Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305)
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
stated principal amount. Special federal income tax, accounting and other
considerations applicable to any such Original Issue Discount Securities will be
described in the Prospectus Supplement relating thereto.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Offered Debt Securities, the covenants applicable to the
Debt Securities would not necessarily afford holders protection in the event of
a highly leveraged or other transaction involving the Company or in the event of
a material adverse change in the Company's financial condition or results of
operations.
Global Notes
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such series. The specific terms of the depositary arrangement with respect to
any Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a Global Note, the Depositary for such Global Note
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Note to the
accounts of institutions that have accounts with such Depositary (the
"participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities, or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Note will be limited to participants or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Note will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary for such Global Note
(with respect to interests of participants) or by participants or persons that
hold through participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the owner
of such Global Note, such Depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Debt Securities represented by
such Global Note for all purposes under the Senior Indenture. Except as set
forth below, owners of beneficial interests in a Global Note will not be
entitled to have Debt Securities of the series represented by such Global Notes
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not
6
<PAGE> 8
be considered the owners or holders thereof under the Senior Indenture.
Accordingly, each person owning a beneficial interest in a Global Note must rely
on the procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a Holder under the Senior Indenture. The Senior
Indenture provides that the Depositary may grant proxies and otherwise authorize
participants to take any action which a Holder is entitled to take under the
Senior Indenture. The Company understands that under existing industry practice,
in the event that the Company requests any action of Holders or a beneficial
owner desires to take any action a Holder is entitled to take, the Depositary
would authorize the participants to take such action and that the participants
would take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Payment of principal, premium, if any, and interest on Debt Securities
registered in the name of or held by a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner or
the holder of the Global Note representing such Debt Securities. None of the
Company, the Trustee, any Paying Agent or the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Note for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
Global Note, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Note as shown on the records of such Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Global Note held through such participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name", and will be the responsibility of such participants.
A Global Note may not be transferred except as a whole by the Depositary
for such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary. A Global
Note is exchangeable for Debt Securities registered in the names of persons
other than the Depositary with respect to such Global Note or its nominee only
if (x) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act, (y) the
Company executes and delivers to the Trustee a Company Order that all such
Global Notes shall be exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Debt Securities. Any Global Note that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Debt Securities registered in such names as
the Depositary with respect to such Global Note shall direct. (Section 305).
Events of Default
The following are Events of Default under each Indenture with respect to
Debt Securities of any series issued thereunder: (a) failure to pay any interest
on any Debt Security of that series when due, continued for 60 days; (b) failure
to pay the principal of (or premium, if any, on) any Debt Security of that
series when due; (c) failure to make sinking fund payments in respect of any
Debt Security of that series when due, continued for 60 days; (d) failure to
perform any other covenant of the Company in the applicable Indenture (other
than a covenant included in such Indenture solely for the benefit of a series of
Debt Securities other than that series), continued for 90 days after written
notice as provided in such Indenture; (e) default by the Company in payment of
any principal of any Funded Debt outstanding in an aggregate principal amount in
excess of $10,000,000 causing such Funded Debt to become, or to be declared, due
prior to its stated maturity and such acceleration is not cured within 30 days
after notice; (f) certain events in bankruptcy, insolvency or reorganization;
and (g) any other Event of Default provided with respect to Debt Securities of
that series. (Section 501) If an Event of
7
<PAGE> 9
Default provided with respect to Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt 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 Debt
Securities of that series to be due and payable immediately. However, any time
after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before judgment or decree based on such acceleration
has been obtained, the Holders of a majority in principal amount of Outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (Section 502) For information as to waiver of defaults,
see "Modification and Waiver".
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provision relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
Each of the Indentures provides that, subject to the duties of the
applicable Trustee to act with the required standard of care if an Event of
Default shall occur and be continuing, such Trustee will be under no obligation
to exercise any of its rights or powers under the Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to such
Trustee reasonable security or indemnity. (Section 603) Subject to such
provisions for security or indemnification of the applicable Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to such Trustee or exercising
any trust or power conferred on such Trustee with respect to the Debt Securities
of that series. (Section 512)
The Company will be required to furnish to each Trustee annually a
statement as to any defaults in the performance of its obligations under the
applicable Indenture. (Section 1006)
Consolidation, Merger and Sale of Assets
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into any other person, or convey,
transfer or lease its assets substantially as an entirety to, any Person,
provided that the person formed by such consolidation or into which the Company
is merged or the Person, which acquires by conveyance or transfer or leases the
assets of the Company substantially as an entirety, is organized under the laws
of any United States jurisdiction and assumes the Company's obligations on the
Debt Securities and under the Indentures, that after giving effect to the
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 that certain other conditions are met. (Article Eight)
Modification and Waiver
Modification and amendments of each Indenture may be made by the Company
and the applicable Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Debt Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security; (b) reduce the principal amount
of, or any premium or interest on, any Debt Security; (c) reduce the amount of
principal of an Original Issue Discount Security payable upon acceleration of
the Maturity thereof; (d) change the place or currency of payment of principal
of, or premium (if any) or interest on, any Debt Security; (e) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Debt Security; or (f) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of the Holders of which is
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required for modification or amendment of the applicable Indenture or for waiver
of compliance with certain provisions of the applicable Indenture or for waiver
of certain defaults. (Section 902)
Without the consent of any Holder of Outstanding Debt Securities, the
Company may amend or supplement each of the Indentures and each series of Debt
Securities to cure any ambiguity or inconsistency or to provide for Debt
Securities in bearer form in addition to or in place of registered Debt
Securities or to make any other provisions that do not adversely affect the
rights of any Holder of Outstanding Debt Securities. (Section 901)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of (or premium, if any)
or interest on any Debt Security of that series or in respect of a provision
which under the Indenture cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of that series affected. (Section
513)
Defeasance
The Indentures provide that the Company may elect to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities
and to hold moneys for payment in trust) ("defeasance"), upon the deposit with
the applicable Trustee (or other qualifying trustee), in trust for such purpose,
of money, and/or U.S. Government Obligations (as defined), which through the
payment of principal and interest in accordance with their terms will provide
money, in an amount sufficient to pay the principal of (and premium, if any) and
interest on such Debt Securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor. (Article Thirteen)
In the event of a defeasance as provided above with respect to any Debt
Securities, holders of such Debt Securities would be able to look only to the
trust fund established for payments of principal of (and premium, if any) and
interest on such Debt Securities until maturity. Further, under current federal
income tax laws, such a defeasance could be a taxable exchange of such Debt
Securities for interests in the trust. As a consequence, a holder may recognize
gain or loss equal to the difference between the holder's cost or other tax
basis for such Debt Securities and the value of the holder's interest in the
trust, and thereafter may be required to include in income a share of the
income, gain and loss of the trust.
SENIOR INDENTURE PROVISIONS
Limitation on Liens
The Senior Indenture provides that if the Company or any Restricted
Subsidiary shall incur, assume or guarantee any Debt secured by a Mortgage on
any Principal Property, on any shares of stock of any Restricted Subsidiary or
on any Restricted Subsidiary Indebtedness, the Company will secure, or cause
such Restricted Subsidiary to secure, the Senior Securities equally and ratably
with (or prior to) such secured Debt, unless after giving effect thereto the
aggregate amount of all such Debt so secured would not exceed 10% of the
Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries.
This restriction will not apply to, and there shall be excluded in computing
secured Debt for the purpose of such restriction, Debt secured by (a) Mortgages
existing at the date of the Senior Indenture, (b) Mortgages on property, on
shares of stock or Restricted Subsidiary Indebtedness of any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (c)
Mortgages in favor of the Company or any Restricted Subsidiary, (d) Mortgages on
property, shares of stock, or Restricted Subsidiary Indebtedness existing at the
time of acquisition thereof (including acquisition through merger, consolidation
or other reorganization) and certain purchase money Mortgages and construction
cost Mortgages, (e) certain Mortgages in favor of governmental
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bodies (including Mortgages in connection with tax-exempt indebtedness), (f)
certain Mortgages to secure partial, progress, advance or other payments or any
Debt incurred to finance the purchase price or cost of construction, development
or repair, alteration or improvement of property, (g) Mortgages on oil, gas,
coal or other minerals in place or on geothermal resources in place and related
interests incurred to finance production, development or acquisition costs, (h)
Mortgages on certain equipment, (i) Mortgages arising in connection with certain
government contracts and (j) certain extensions, renewals or replacements of any
Debt secured by any Mortgage referred to in the foregoing clauses (a) through
(i), inclusive. (Section 1005) The Senior Indenture will not restrict the
incurrence of unsecured Debt by the Company or its Subsidiaries.
Certain Summary Definitions
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Company and its Restricted Subsidiaries after deducting (a) all current
liabilities (excluding any Funded Debt) and (b) all goodwill, trade names and
trademarks, patents, unamortized debt discount and expense and other like
intangibles.
"Principal Property" means any plant or real property interest located in
the United States or offshore the United States owned by the Company or any
Restricted Subsidiary, the gross book value of which exceeds 2% of Consolidated
Net Tangible Assets, unless the Board of Directors determines such property is
not of material importance to the total business of the Company. As of March 31,
1997, approximately 15% of Consolidated Net Tangible Assets would be within the
definition of Principal Properties.
"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.
Regarding the Senior Trustee
The Senior Trustee is an affiliate of the Bank of Montreal ("BOM"). The
Company has a $225,000,000 Revolving Credit Agreement and a $125,000,000 364-Day
Credit Agreement with a group of commercial banks, including BOM. Pursuant to
the terms of the Agreements, BOM has a commitment to loan the Company an
aggregate of $40,000,000.
SUBORDINATED INDENTURE PROVISIONS
Conversion Rights
The Prospectus Supplement will provide whether the Offered Debt Securities
will consist of convertible Subordinated Securities and, if so, the initial
conversion price per share at which such convertible Subordinated Securities
will be convertible into Common Stock. Subject to prior redemption of the
convertible Subordinated Securities, the holders of such Securities will be
entitled at any time on or before the close of business on the maturity date
thereof to convert such Securities (or, in the case of convertible Subordinated
Securities of denominations in excess of $1,000 any portion of which is $1,000
or an integral multiple of $1,000) into shares of Common Stock at the initial
conversion price set forth in the Prospectus Supplement. No adjustment will be
made on conversion of any convertible Subordinated Securities for interest
accrued thereon or, except as set forth below, for dividends on any securities
issued upon such conversion. Certificates for shares of Common Stock issued, on
or prior to the Expiration Date, hereinafter referred to, or Distribution Date,
as defined below under "Rights Agreement", upon conversion of convertible
Subordinated Securities shall also evidence one right (a "Right"), in respect of
each such share, pursuant to the Rights Agreement, dated as of October 4, 1988
(the "Rights Agreement") between the Company and Chemical Bank, as then in
effect. See "Description of Capital Stock, Rights Agreement and Restated
Certificate of Incorporation -- Rights Agreement" for a description of the
Rights and the Rights Agreement. "Expiration Date" means the earlier of (i)
October 20, 1998 or (ii) the redemption of the Rights.
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In order to exercise the right of conversion, the Holder of any such
convertible Subordinated Securities must surrender his convertible Subordinated
Securities to the Company at any office or agency of the Company maintained for
such purpose. The convertible Subordinated Securities to be surrendered must be
accompanied by written notice to the Company that the Holder elects to convert
such Securities.
If any convertible Subordinated Security, whether or not called for
redemption, is converted between a record date for the payment of interest and
the next succeeding interest payment date, such Security must be accompanied by
funds payable to the Company equal to the interest payable to the registered
holder on such interest payment date on the principal amount so converted. In
the case of any convertible Subordinated Security or portion thereof called for
redemption, conversion rights expire at the close of business on the Redemption
Date, even if such redemption occurs at a time when conversion of the
Subordinated Security portion thereof is in the best interests of the Holder.
(Sections 1501, 1502 and 1503)
Except where Subordinated Securities surrendered for conversion must be
accompanied by such payment, no interest on converted Subordinated Securities
will be payable by the Company on any interest payment date subsequent to the
date of conversion.
No fractional shares of Common Stock will be issued upon conversion but, in
lieu thereof, an adjustment in cash will be made based on the market price at
the close of business on the date of conversion. (Section 1503)
The Conversion Price will be subject to adjustment in the event of: (i) the
payment of certain stock dividends on the Common Stock; (ii) the issuance of
certain rights or warrants to all holders of the Common Stock entitling them to
subscribe for or purchase Common Stock at a price less than the market price;
(iii) the subdivision of Common Stock into a greater number of shares of Common
Stock; (iv) the distribution by the Company to all holders of the Common Stock
of evidences of indebtedness or assets of the Company (excluding rights or
warrants and any dividends or distributions mentioned above); and (v) the
reclassification of Common Stock into other securities. (Section 1504) In case
of any consolidation or merger of the Company with or into any other corporation
(other than a consolidation or merger which does not result in any
reclassification, change or conversion of Common Stock), or in case of any sale
or transfer of substantially all the assets of the Company, any Holder of any
Subordinated Securities will be entitled, after the occurrence of any such
event, to receive on conversion the kind and amount of shares of capital stock
and other securities, cash or other property receivable upon such event by a
holder of the number of shares of Common Stock into which such Securities might
have been converted immediately prior to the occurrence of the event. (Section
1511) In addition to the foregoing adjustments, the Company will be permitted to
make such decreases in the Conversion Price as it considers to be necessary in
order that any event treated for federal income tax purposes as a dividend of
stock or stock rights will not be taxable to the holders of Common Stock.
(Section 1504) No adjustment for dividends other than certain stock dividends on
the Common Stock is to be made upon conversion. (Section 1502)
Subordination
The payment of the principal of (and premium, if any) and interest on the
Subordinated Securities is expressly subordinated, to the extent and in the
manner set forth in the Subordinated Indenture, in right of payment to the prior
payment in full of all present and future Senior Indebtedness of the Company.
(Section 1401) In the event of any insolvency or bankruptcy case or proceeding
or any receivership, liquidation, dissolution or other winding up of the
Company, the holders of Senior Indebtedness shall be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Indebtedness before the Holders of the Subordinated Securities are entitled to
receive any payment on the Subordinated Securities (subject to the power of a
court of competent jurisdiction to make other equitable provision in a lawful
plan of reorganization under applicable bankruptcy laws), except that in any
such case or proceeding the Holders of the
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Subordinated Securities may be entitled to receive securities of the Company
which are subordinate and subject to the prior payment in full of all Senior
Indebtedness then outstanding. In the event that the Subordinated Securities are
declared due and payable before their stated maturity because of the occurrence
of an Event of Default, the holders of Senior Indebtedness then outstanding
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness before the Holders of the
Subordinated Securities are entitled to receive any payment on account of the
Subordinated Securities. During the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Indebtedness
beyond any applicable period of grace, unless and until such default in payment
shall have been cured or waived or shall have ceased to exist, or in the event
any judicial proceeding shall be pending with respect to any such default, no
payments may be made on the Subordinated Securities by the Company. (Article
Fourteen) By reason of such subordination, in the event of insolvency or other
specified eventualities, the Holders of the Subordinated Securities may recover
less, ratably, and the holders of Senior Indebtedness may recover more, ratably,
than other creditors of the Company.
"Senior Indebtedness" means principal of (and premium, if any) and unpaid
interest on (a) indebtedness (secured or unsecured) incurred, assumed or
guaranteed, directly or indirectly, by the Company either before, on or after
the date of the Subordinated Indenture and which is for money borrowed
(including any obligation to pay or reimburse any bank in respect of letter of
credit drawings, payment of drafts or similar transactions), or which is
evidenced by notes, debentures, bonds or other similar securities whether or not
for money borrowed and (b) renewals, extensions or refundings of any such
indebtedness, unless it is provided by the instrument creating, evidencing,
renewing, extending or refunding the same or pursuant to which the same is
outstanding, that such indebtedness is not senior in right of payment to the
Subordinated Securities. (Section 101)
As of July 3, 1997, the Company had $809,200,000 aggregate principal amount
of Senior Indebtedness outstanding. The Subordinated Indenture does not restrict
the amount of additional Senior Indebtedness which may be incurred by the
Company.
Regarding the Subordinated Trustee
The Company has a $225,000,000 Revolving Credit Agreement and a
$125,000,000 364-Day Credit Agreement with a group of commercial banks,
including the Subordinated Trustee. Pursuant to the terms of the Agreements, the
Subordinated Trustee has a commitment to loan the Company an aggregate of
$40,000,000.
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DESCRIPTION OF CAPITAL STOCK, RIGHTS AGREEMENT AND
RESTATED CERTIFICATE OF INCORPORATION
The following summaries of the Company's Preferred Stock, Common Stock and
the Rights Agreement are qualified in their entirety by reference to the
Restated Certificate of Incorporation of the Company and the Rights Agreement.
The Restated Certificate of Incorporation and the Rights Agreement are filed as
exhibits to the Registration Statement of which this Prospectus is a part.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Company is
authorized to issue (i) 200,000,000 shares of Common Stock, of which 60,618,034
shares were issued and outstanding at March 31, 1997 and (ii) 2,000,000 shares
of Preferred Stock, none of which are issued and outstanding as of the date of
this Prospectus.
COMMON STOCK
Holders of the Common Stock are entitled to one vote per share on all
matters to be voted on by stockholders and are entitled, subject to any
preferential rights of holders of preferred stock, to receive such dividends, if
any, as may be declared from time to time by the Board in its discretion out of
funds legally available therefor. Upon any liquidation or dissolution of the
Company, the holders of the Common Stock are entitled, subject to any
preferential rights of holders of preferred stock, to receive pro rata all
assets remaining available for distribution to stockholders after payment of all
liabilities. The Common Stock has no preemptive or other subscriptive rights,
and there are no conversion rights or redemption or sinking fund provisions with
respect to the Common Stock. The vote of the holders of a majority of the Common
Stock is required for any action by the stockholders of the Company, except as
described under "Restated Certificate of Incorporation" below. The Company's
board of directors is divided into three classes of directors serving staggered
three-year terms. Class I has three directors and Class II and Class III each
have two directors. The Company's Common Stock is listed on the New York Stock
Exchange under the symbol "APC".
PREFERRED STOCK
The Board, without further action by the stockholders, is authorized to
issue shares of preferred stock in one or more series, and to determine
preference as to dividends and in liquidation and voting, conversion, redemption
and other rights more favorable with respect to dividends and liquidation than
those of the holders of the Common Stock. The particular rights, preferences and
privileges of any series of Preferred Stock will be set forth in the Prospectus
Supplement. Such preferences and rights as may be established could have the
effect of impeding the acquisition of control of the Company. No such Preferred
Stock is outstanding as of the date of this Prospectus. Pursuant to the Rights
Agreement the Board has designated the Series A Junior Participating Preferred
Stock. If so specified in the Prospectus Supplement, the Preferred Stock may be
represented by Depositary Shares entitling the holder proportionally to all
rights and preferences of the Preferred Stock.
RIGHTS AGREEMENT
On October 4, 1988, the Board of Directors of the Company adopted the
Rights Agreement and declared a dividend of one Right for each outstanding share
of Common Stock. At the same time, the Board of Directors of the Company
redeemed rights which had been issued pursuant to the rights agreement adopted
on September 10, 1986.
Pursuant to the Rights Agreement, the Company will have outstanding one
Right for each share of Common Stock which is issued and outstanding prior to
the date the Rights become exercisable. Until the Rights become exercisable,
they will be evidenced by certificates for shares of Common Stock and will
automatically trade with such stock. If and when the Rights become exercisable,
Rights certificates will be distributed and the Rights will become separately
transferable.
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Each Right will entitle the registered holder to purchase from the Company
one two-hundredth of a share (a "Unit") of Series A Junior Participating
Preferred Stock of the Company, at a price of $80.00 per Unit (the "Purchase
Price"), subject to adjustment. In general, the Rights become exercisable (and
transferable apart from the Common Stock) on the earlier of (i) ten days
following a public announcement that a person or group (an "Acquiring Person")
has acquired beneficial ownership of 20% or more of the Common Stock (the "Stock
Acquisition Date"), (ii) ten business days following the commencement of an
offer to acquire beneficial ownership of 25% or more of the Common Stock or
(iii) ten days after a person has acquired at least 15% of the Common Stock and
the Company's Board of Directors determines that (x) beneficial ownership by
such person of such shares is intended to cause the Company to repurchase the
Common Stock owned by such person or to pressure the Company into taking action
intended to provide such person with short-term financial gains under
circumstances where the best long-term interests of the Company and its
stockholders would not be served or (y) such person's beneficial ownership of
the Company's Common Stock is causing or reasonably likely to cause a material
adverse impact on the business or prospects of the Company (any such person
being referred to herein as an "Adverse Person"). The date on which the Rights
become exercisable is referred to as the "Distribution Date".
In the event that (i) a Person becomes the beneficial owner of 25% or more
of the then outstanding shares of Common Stock (except pursuant to an offer for
all outstanding shares of Common Stock which a majority of the independent
directors on the Board of Directors determines to be fair to and otherwise in
the best interest of the Company and its stockholders), or (ii) the Board of
Directors determines that a person is an Adverse Person, each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or other
consideration) having a value equal to two times the Purchase Price.
Notwithstanding any of the foregoing, following the occurrence of any of the
events set forth in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were beneficially owned by any
Acquiring Person or Adverse Person will be null and void. However, Rights are
not exercisable following the occurrence of either of the events set forth above
until such time as the Rights are no longer redeemable by the Company.
In general, in the event that, following the Stock Acquisition Date, (i)
the Company shall consolidate with, or merge with and into, any other Person
(other than a Subsidiary of the Company), and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) any
Person (other than a Subsidiary of the Company) shall consolidate with, or merge
with or into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (iii) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or Persons each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, common stock
of such Person having a value equal to two times the Purchase Price of the
Right.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Plan may be amended by the Board of
Directors of the Company prior to the Distribution Date. After the Distribution
Date, the provisions of the Rights Plan may be amended by the Board of Directors
in order to cure any ambiguity, to make changes which do not adversely affect
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the interests of holders of Rights, or to shorten or lengthen any time period
under the Rights Plan; provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as the Rights are not
redeemable.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become exercisable for shares of Common
Stock at less than fair market value unless the offer is conditioned on a
substantial number of Rights being acquired. The Rights, however, should not
affect any prospective offeror willing to make an offer at a fair price and
otherwise in the best interests of the Company and its stockholders, as
determined by a majority of the Directors who are not officers of the Company
and who are not affiliated with an Acquiring Person, or willing to negotiate
with the Board of Directors. The Rights should not interfere with any merger or
other business combination approved by the Board of Directors since the Board of
Directors may, at its option, at any time until ten days following the Stock
Acquisition Date redeem all but not less than all the then outstanding Rights at
the Redemption Price.
The Rights will also adversely affect a person who desires to obtain
control of the Company without acquiring 100% ownership and then to engage in
specified self-dealing transactions. The Rights will have no effect, however, on
a person who is willing to acquire control of the Company and wait until the
Rights expire, without engaging in any self-dealing transactions, before
acquiring 100% ownership. The Rights will not affect a transaction approved by
the Board of Directors of the Company prior to the acquisition by any person or
group of 20% of the Common Stock, because the Rights can be redeemed before the
consummation of such transaction.
The Rights will expire at the close of business on October 20, 1998, unless
redeemed earlier by the Company. In general, the Company may redeem the Rights,
at a price of $0.01 per Right, at any time until ten days following the Stock
Acquisition Date, but Rights may not be redeemed if the Board of Directors has
previously declared a person to be an Adverse Person although the redemption
right may be reinstated under certain conditions.
RESTATED CERTIFICATE OF INCORPORATION
The Certificate contains a "fair price" provision, the purpose of which is
to give greater assurance to the holders of the Company's capital stock that
they will receive fair and equitable treatment in the event of certain "Business
Combinations" with an "Interested Stockholder" or certain related parties (or in
which an "Interested Stockholder" or any such related party has an interest
other than proportionately as a stockholder) by requiring that the Business
Combination satisfy certain procedural safeguards, or that the transaction be
approved by the affirmative vote of not less than 80% of all of the capital
stock which by its terms may be voted on all matters submitted to the
stockholders of the Company generally ("Voting Stock").
The term "Interested Stockholder" is defined to include beneficial owners
of 5% or more of the Voting Stock. The term "Business Combination" is defined to
include, among other things, (a) a merger or consolidation of the Company or any
Subsidiary or adoption of a plan of liquidation of the Company, (b) a sale,
other disposition, loan or other arrangement (or a series of such transactions)
involving assets with a Fair Market Value (as defined) of $25,000,000 or more or
constituting more than 5% of total assets or, in the case of capital stock,
stockholders' equity of the entity in question, and (c) any amendment of the
By-Laws of the Company.
In addition to any affirmative stockholder vote otherwise applicable, a
Business Combination with an Interested Stockholder or certain related parties
(or in which an Interested Stockholder or any such related party has an interest
except proportionately as a stockholder) requires (1) the 80% vote
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referred to above, (2) approval by a majority of the Continuing Directors (as
defined) or (3) satisfaction of, among others, the following requirements:
(a) The consideration per share to be received in the Business
Combination by stockholders of each class shall be in cash or in the form
used to acquire beneficial ownership of the largest number of shares of
such class previously acquired by the Interested Stockholder. Such
consideration shall equal at least the highest of:
(i) the highest per share price offered or paid by the Interested
Stockholder for shares of such class within the three-year period prior
to the date of announcement of the Business Combination or in the
transaction in which the Interested Stockholder became such;
(ii) the Fair Market Value per share of such class on the date of
announcement of the Business Combination or the date on which the
Interested Stockholder became such, whichever is higher; or
(iii) the highest preferential amount per share (if any) to which
holders of shares of such class are entitled in the event of a
liquidation, dissolution or winding up of the Company;
(b) After the date on which the Interested Stockholder becomes such,
dividends shall not have been reduced (except as approved by a majority of
the Continuing Directors) and the Interested Stockholder shall not have
acquired additional shares of stock, except in certain limited
circumstances; and
(c) The Interested Stockholder shall not have made any major change in
the Company's business or equity capital structure without the approval of
a majority of the Continuing Directors.
The Certificate further provides that stockholders shall be entitled to
cumulative voting at any time during which there shall be a 30% Stockholder
(defined generally to include any beneficial owner of 30% or more of the Voting
Stock).
The existence of these provisions may make a merger or takeover of the
Company more difficult or discourage a merger or takeover of the Company, or the
acquisition of control of the Company, by another person or entity, and, as a
consequence, will make the removal of incumbent management more difficult.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell offered Securities to or through one or more
underwriters or dealers, and also may sell offered Securities directly to other
purchasers or through agents or through a combination of any such methods of
sale. Any such underwriter or agent involved in the offer and sale of the
offered Securities will be named in the Prospectus Supplement. The distribution
of the offered Securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
The Company may from time to time authorize underwriters or dealers acting
as the Company's agents to offer and sell the offered Securities upon the terms
and conditions as set forth in any Prospectus Supplement. In connection with the
sale of offered Securities, underwriters or dealers may receive compensation
from the Company or from purchasers of offered Securities for whom they may act
as agents in the form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of offered Securities
may be deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of offered Securities by them
may be deemed to be underwriting discounts and commissions under the Securities
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Act of 1933 (the "1933 Act"). Any such person who may be deemed to be an
underwriter will be identified, and any such compensation received from the
Company will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of offered Securities may
be entitled to indemnification or contribution by the Company against certain
liabilities, including liabilities under the 1933 Act, and to reimbursement by
the Company for certain expenses.
Certain of the underwriters, dealers or agents may engage in transactions
with and perform services for the Company in the ordinary course of business.
The specific terms and manner of sale of offered Securities are set forth
or summarized in the Prospectus Supplement.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases will be
subject to acceptance by the Company. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of Offered Debt
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
persons will not have any responsibility in respect of the validity or
performance of such contracts.
VALIDITY OF SECURITIES
The validity of the offered Securities will be passed upon for the Company
by Davis Polk & Wardwell and for any underwriters, dealers or agents by Hughes
Hubbard & Reed LLP, New York, New York.
EXPERTS
The consolidated financial statements of Anadarko Petroleum Corporation and
subsidiaries as of December 31, 1996 and 1995 and for each of the years in the
three-year period ended December 31, 1996 incorporated by reference in the
Registration Statement have been incorporated herein in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein, and upon the authority of said firm as experts in
accounting and auditing.
17
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses which will be paid by the Company are as follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 90,910
Accounting Fees and Expenses................................ 110,000
Blue Sky Fees and Expenses.................................. 15,000
Legal Fees and Expenses..................................... 50,000
Printing and Engraving...................................... 75,000
Fees and Expenses of Trustees and Counsel................... 60,000
Rating Agency Fees.......................................... 125,000
Miscellaneous............................................... 10,000
--------
TOTAL............................................. $535,910
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for
indemnification of officers and directors under certain conditions.
Article IX of the By-Laws of the Company provides for indemnification of
officers and directors to the fullest extent which may be provided by a by-law
under applicable law.
The Company maintains insurance for officers and directors of the
Registrant against certain liabilities, including liabilities under the
Securities Act of 1933, under insurance policies, the premiums of which are paid
by the Company. The effect of these is to indemnify any officer or director of
the Registrant against expenses, judgments, attorney's fees and other amounts
paid in settlements incurred by an officer or director upon a determination that
such person acted in good faith.
ITEM 16. EXHIBITS.
Exhibits not incorporated by reference to a prior filing are designated by
an asterisk (*) and are filed herewith; all exhibits not so designated are
incorporated by reference to a prior filing as indicated.
<TABLE>
<S> <C>
(1) -- (a) Form of Underwriting Agreement relating to the Senior
Securities (originally filed as Exhibit 1(a) to Form S-3
filed on October 22, 1993, Registration No. 33-50717).
(b) Form of Underwriting Agreement relating to the
Subordinated Securities (originally filed as Exhibit 1(b)
to Form S-3 filed on October 22, 1993, Registration No.
33-50717).
(c) Form of Distribution Agreement (originally filed as
Exhibit 1(c) to Form S-3 filed on October 22, 1993,
Registration No. 33-50717).
(d) Form of Underwriting Agreement relating to the Equity
Securities (originally filed as Exhibit 1(d) to Form S-3
filed on October 22, 1993, Registration No. 33-50717).
(4) -- (a) Form of Senior Indenture.*
(b) Form of Senior Debt Security (included in Article Two of
Exhibit 4(a)).
(c) Form of Subordinated Indenture.*
(d) Form of Subordinated Debt Security (included in Article
Two of Exhibit 4(c)).
(e) Restated Certificate of Incorporation of the Company,
dated August 28, 1986 (originally filed as Exhibit
19(a)(i) to Form 10-Q for quarter ended September 30,
1986, File No. 1-8968).
</TABLE>
II-1
<PAGE> 20
<TABLE>
<C> <S>
(f) Rights Agreement, dated as of October 4, 1988, between
the Company and Manufacturers Hanover Trust Company
(originally filed as Exhibit 4 to Form 8-K, dated
October 5, 1988, File No. 1-8968).
(5) -- Opinion of Counsel to the Company.*
(12) -- Consolidated Statement of Computation of Ratio of Earnings
to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends.*
(23) -- (a) Consent of Counsel to the Company (included in Exhibit
5).
(b) Consent of KPMG Peat Marwick LLP.*
(24) -- Powers of Attorney.*
(25) -- (a) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
Harris Trust and Savings Bank.*
(b) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
First Chicago NBD.*
</TABLE>
- ---------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 21
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to any charter provision, by-law, contract, arrangement,
statute, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 22
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE 9TH DAY OF JULY,
1997.
ANADARKO PETROLEUM CORPORATION
By ROBERT J. ALLISON, JR.*
------------------------------------
Robert J. Allison, Jr.,
Chairman of the Board, President
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON 9TH DAY OF JULY, 1997:
<TABLE>
<CAPTION>
SIGNATURE TITLE
<C> <C> <S> <C>
(I) PRINCIPAL EXECUTIVE OFFICER:*
ROBERT J. ALLISON, JR. Chairman of the Board, President
--------------------------------------------------- and Chief
Robert J. Allison, Jr. Executive Officer
(II) PRINCIPAL FINANCIAL OFFICER:*
MICHAEL E. ROSE Senior Vice President,
--------------------------------------------------- Finance and Chief
Michael E. Rose Financial Officer
(III) PRINCIPAL ACCOUNTING OFFICER:*
JAMES R. LARSON Vice President and Controller
---------------------------------------------------
James R. Larson
(IV) DIRECTORS:*
ROBERT J. ALLISON, JR.
---------------------------------------------------
Robert J. Allison, Jr.
CONRAD P. ALBERT
---------------------------------------------------
Conrad P. Albert
LARRY BARCUS
---------------------------------------------------
Larry Barcus
RONALD BROWN
---------------------------------------------------
Ronald Brown
JAMES L. BRYAN
---------------------------------------------------
James L. Bryan
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
Signature
---------
<S> <C>
JOHN R. BUTLER, JR.
---------------------------------------------------
John R. Butler, Jr.
SIGNATURE
JOHN R. GORDON
---------------------------------------------------
John R. Gordon
</TABLE>
* Signed on behalf of the registrant and each of these persons:
By SUZANNE SUTER
---------------------------------
(Suzanne Suter, Attorney-in-Fact)
II-5
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
(1) -- (a) Form of Underwriting Agreement relating to the Senior
Securities (originally filed as Exhibit 1(a) to Form S-3
filed on October 22, 1993, Registration No. 33-50717).
(b) Form of Underwriting Agreement relating to the
Subordinated Securities (originally filed as Exhibit 1(b)
to Form S-3 filed on October 22, 1993, Registration No.
33-50717).
(c) Form of Distribution Agreement (originally filed as
Exhibit 1(c) to Form S-3 filed on October 22, 1993,
Registration No. 33-50717).
(d) Form of Underwriting Agreement relating to the Equity
Securities (originally filed as Exhibit 1(d) to Form S-3
filed on October 22, 1993, Registration No. 33-50717).
(4) -- (a) Form of Senior Indenture.*
(b) Form of Senior Debt Security (included in Article Two of
Exhibit 4(a)).
(c) Form of Subordinated Indenture.*
(d) Form of Subordinated Debt Security (included in Article
Two of Exhibit 4(c)).
(e) Restated Certificate of Incorporation of the Company,
dated August 28, 1986 (originally filed as Exhibit
19(a)(i) to Form 10-Q for quarter ended September 30,
1986, File No. 1-8968).
(f) Rights Agreement, dated as of October 4, 1988, between
the Company and Manufacturers Hanover Trust Company
(originally filed as Exhibit 4 to Form 8-K, dated
October 5, 1988, File No. 1-8968).
(g) Form of Depositary Receipts (included in Exhibit 4(g)).
(5) -- Opinion of Counsel to the Company.*
(12) -- Consolidated Statement of Computation of Ratio of Earnings
to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends.*
(23) -- (a) Consent of Counsel to the Company (included in Exhibit 5).
(b) Consent of KPMG Peat Marwick LLP.*
(24) -- Powers of Attorney.*
(25) -- (a) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
Harris Trust and Savings Bank.*
(b) Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
The First National Bank of Chicago.*
</TABLE>
---------------
* Filed herewith
<PAGE> 1
================================================================================
ANADARKO PETROLEUM CORPORATION
AND
TRUSTEE
------------------
INDENTURE
DATED AS OF
------------------
SENIOR DEBT SECURITIES
================================================================================
<PAGE> 2
ANADARKO PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED, AND
INDENTURE, DATED AS OF
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<C> <S> <C> <C>
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
</TABLE>
- ------------
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
<PAGE> 3
TABLE OF CONTENTS
------------------
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
</TABLE>
- ------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
</TABLE>
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
<PAGE> 5
iii
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
</TABLE>
<PAGE> 7
v
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
SECTION 1107. Securities Redeemed in Part........................ 70
</TABLE>
<PAGE> 8
vi
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
</TABLE>
<PAGE> 9
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, 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
<PAGE> 10
2
101
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.
"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.
<PAGE> 11
3
101
"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.
"Defaulted Interest" has the meaning specified in Section 307.
"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
<PAGE> 12
4
101
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 installment 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 installment of principal becomes 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.
<PAGE> 13
5
101
"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;
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
<PAGE> 14
6
101
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 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.
<PAGE> 15
7
101
"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.
"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.
<PAGE> 16
8
101,102
"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 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
<PAGE> 17
9
102,103,104
(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.
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
<PAGE> 18
10
104
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 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.
<PAGE> 19
11
105,106
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 provided)
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.
<PAGE> 20
12
107,108,109,110,111,112,113
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 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.
<PAGE> 21
13
201,202
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.
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 ........] ]
<PAGE> 22
14
202
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 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
<PAGE> 23
15
202,203
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.
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
<PAGE> 24
16
203
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,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
<C> <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
<PAGE> 25
17
203
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 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
<PAGE> 26
18
203
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.]
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
<PAGE> 27
19
203
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, 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.
<PAGE> 28
20
203,204,301
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.
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.
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
<PAGE> 29
21
301
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 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
<PAGE> 30
22
301
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;
(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.
<PAGE> 31
23
302,303
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.
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
<PAGE> 32
24
303
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 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.
<PAGE> 33
25
304,305
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued 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.
<PAGE> 34
26
305
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 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
<PAGE> 35
27
305
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
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
<PAGE> 36
28
305,306
(2) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered 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
<PAGE> 37
29
306,307
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series 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> 38
30
307, 308
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 for all other purposes
whatsoever, whether or not such Security be overdue,
<PAGE> 39
31
308,309,310,401
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 (ii) Securities
for whose payment money has theretofore been
<PAGE> 40
32
401,402
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.
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
<PAGE> 41
33
402,501
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 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
<PAGE> 42
34
501
(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 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
<PAGE> 43
35
501,502
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,
(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;
<PAGE> 44
36
502,503
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 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
<PAGE> 45
37
503,504
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 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
<PAGE> 46
38
504,505,506,507
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.
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;
<PAGE> 47
39
507,508,509
(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 Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee
<PAGE> 48
40
509,510,511,512
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 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.
<PAGE> 49
41
513,514
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 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).
<PAGE> 50
42
515,601
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 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.
<PAGE> 51
43
601,602
(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.
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
<PAGE> 52
44
602,603
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 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;
<PAGE> 53
45
603,604,605
(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 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.
<PAGE> 54
46
606,607,608
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
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
<PAGE> 55
47
608,609,610
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.
(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.
<PAGE> 56
48
610
(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 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
<PAGE> 57
49
610,611
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 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
<PAGE> 58
50
611,612
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.
(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
<PAGE> 59
51
612,613,614
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.
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
<PAGE> 60
52
614
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 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
<PAGE> 61
53
614,701
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.
As Trustee
By...................................
As Authenticating Agent
By...................................
Authorized Signatory
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;
<PAGE> 62
54
701,702
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
(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.
<PAGE> 63
55
702,703,704
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).
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.
<PAGE> 64
56
801,802
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;
(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
<PAGE> 65
57
802,901
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 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
<PAGE> 66
58
901,902
(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 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
<PAGE> 67
59
902,903,904
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 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
<PAGE> 68
60
904,905,906,1001,1002
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities 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
<PAGE> 69
61
1002,1003
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.
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:
<PAGE> 70
62
1003
(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.
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.
<PAGE> 71
63
1004,1005
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.
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
<PAGE> 72
64
1005
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;
(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,
<PAGE> 73
65
1005,1006
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 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.
<PAGE> 74
66
1101,1102,1103
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 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
<PAGE> 75
67
1103,1104
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, 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.
<PAGE> 76
68
1105,1106,1107
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.
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> 77
69
1201,1202,1203
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 any,
which is to be satisfied by payment of cash and the portion thereof, if
<PAGE> 78
70
1203,1301,1302
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.
The Company may at its option by or pursuant to a Board Resolution, at any
time, with respect to the Securities of a series, elect to have Section 1302 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 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,
<PAGE> 79
71
1302,1303
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 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
<PAGE> 80
72
1303
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 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.
<PAGE> 81
73
1304
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> 82
74
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
------------------------------------
Senior Vice President, Finance
ATTEST:
- ----------------------------------
Corporate Secretary
as Trustee
[SEAL]
By
---------------------------------------
ATTEST:
- ----------------------------------
<PAGE> 83
75
<TABLE>
<S> <C>
STATE OF TEXAS )
COUNTY OF HARRIS )
</TABLE>
On the day of , before me personally
came , to me known, who, being by me duly sworn, did depose
and say that he is 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.
-------------------------------------
NOTARY
<TABLE>
<S> <C>
STATE OF )
COUNTY OF )
</TABLE>
On the day of , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that such person is 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.
-------------------------------------
NOTARY
<PAGE> 1
================================================================================
ANADARKO PETROLEUM CORPORATION
AND
TRUSTEE
------------------
INDENTURE
DATED AS OF
------------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
ANADARKO PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<C> <S> <C> <C>
sec. 310(a) (1) .......................................... 609
(a) (2) .......................................... 609
(a) (3) .......................................... Not Applicable
(a) (4) .......................................... Not Applicable
(b) .......................................... 609
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
</TABLE>
- ------------
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.
<PAGE> 3
TABLE OF CONTENTS
------------------
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
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
Common Stock........................................ 3
Company............................................. 3
Company Request; Company Order...................... 3
Conversion Price.................................... 3
Corporate Trust Office.............................. 3
Defaulted Interest.................................. 3
Depositary.......................................... 3
Event of Default.................................... 3
Funded Debt......................................... 3
Global Security..................................... 4
Holder.............................................. 4
Indenture........................................... 4
interest............................................ 4
Interest Payment Date............................... 4
Maturity............................................ 4
Officers' Certificate............................... 4
Opinion of Counsel.................................. 4
Original Issue Discount Security.................... 4
Outstanding......................................... 5
Paying Agent........................................ 5
Person.............................................. 6
Place of Payment.................................... 6
Predecessor Security................................ 6
Principal........................................... 6
Redemption Date..................................... 6
Redemption Price.................................... 6
Regular Record Date................................. 6
Responsible Officer................................. 6
</TABLE>
- ------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Securities.......................................... 6
Security Register and Security Registrar............ 7
Senior Indebtedness................................. 7
Special Record Date................................. 7
Stated Maturity..................................... 7
Trustee............................................. 7
Trust Indenture Act................................. 7
Vice President...................................... 7
SECTION 102. Compliance Certificates and Opinions................ 7
SECTION 103. Form of Documents Delivered to Trustee.............. 8
SECTION 104. Acts of Holders..................................... 9
SECTION 105. Notices, Etc., to Trustee and Company............... 10
SECTION 106. Notice to Holders; Waiver........................... 10
SECTION 107. Conflict with Trust Indenture Act................... 11
SECTION 108. Effect of Headings and Table of Contents............ 11
SECTION 109. Successors and Assigns.............................. 11
</TABLE>
SECTION 110. Separability Clause................................. 11
SECTION 111. Benefits of Indenture............................... 12
SECTION 112. Governing Law....................................... 12
SECTION 113. Legal Holidays...................................... 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..................................... 12
SECTION 202. Form of Face of Security............................ 13
SECTION 203. Form of Reverse of Security......................... 15
SECTION 204. Form of Trustee's Certificate of Authentication..... 21
SECTION 205. Form of Notice of Conversion........................ 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................ 22
SECTION 302. Denominations....................................... 24
SECTION 303. Execution, Authentication, Delivery and Dating...... 25
SECTION 304. Temporary Securities................................ 26
SECTION 305. Registration, Registration of Transfer and
Exchange.......................................... 27
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.... 30
SECTION 307. Payment of Interest; Interest Rights Preserved...... 31
SECTION 308. Persons Deemed Owners............................... 33
SECTION 309. Cancellation........................................ 33
SECTION 310. Computation of Interest............................. 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............. 33
SECTION 402. Application of Trust Money.......................... 35
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................... 35
SECTION 502. Acceleration of Maturity; Rescission and
Annulment......................................... 37
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................ 38
SECTION 504. Trustee May File Proofs of Claim.................... 39
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................ 40
SECTION 506. Application of Money Collected...................... 40
SECTION 507. Limitation on Suits................................. 41
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................. 42
SECTION 509. Restoration of Rights and Remedies.................. 42
SECTION 510. Rights and Remedies Cumulative...................... 42
SECTION 511. Delay or Omission Not Waiver........................ 43
SECTION 512. Control by Holders.................................. 43
SECTION 513. Waiver of Past Defaults............................. 43
SECTION 514. Undertaking for Costs............................... 44
SECTION 515. Waiver of Stay or Extension Laws.................... 44
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................. 45
SECTION 602. Notice of Defaults.................................. 46
SECTION 603. Certain Rights of Trustee........................... 47
SECTION 604. Not Responsible for Recitals or Issuance of
Securities........................................ 48
SECTION 605. May Hold Securities................................. 48
SECTION 606. Money Held in Trust................................. 48
SECTION 607. Compensation and Reimbursement...................... 48
SECTION 608. Disqualification; Conflicting Interests............. 49
SECTION 609. Corporate Trustee Required; Eligibility............. 49
SECTION 610. Resignation and Removal; Appointment of Successor... 50
SECTION 611. Acceptance of Appointment by Successor.............. 52
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.......................................... 53
SECTION 613. Preferential Collection of Claims Against Company... 53
SECTION 614. Appointment of Authenticating Agent................. 54
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders........................................... 56
SECTION 702. Preservation of Information; Communications to
Holders........................................... 56
SECTION 703. Reports by Trustee.................................. 58
SECTION 704. Reports by Company.................................. 58
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms............................................. 59
SECTION 802. Successor Substituted............................... 59
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders........................................... 60
SECTION 902. Supplemental Indentures with Consent of Holders..... 61
SECTION 903. Execution of Supplemental Indentures................ 62
SECTION 904. Effect of Supplemental Indentures................... 63
SECTION 905. Conformity with Trust Indenture Act................. 63
SECTION 906. Reference in Securities to Supplemental
Indentures........................................ 63
SECTION 907. Subordination Unimpaired............................ 63
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.......... 64
SECTION 1002. Maintenance of Office or Agency..................... 64
SECTION 1003. Money for Securities Payments to Be Held in Trust... 64
SECTION 1004. Corporate Existence................................. 66
SECTION 1005. Statement by Officers as to Default................. 66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................ 67
SECTION 1102. Election to Redeem; Notice to Trustee............... 67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed... 67
SECTION 1104. Notice of Redemption................................ 68
SECTION 1105. Deposit of Redemption Price......................... 69
SECTION 1106. Securities Payable on Redemption Date............... 69
SECTION 1107. Securities Redeemed in Part......................... 69
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article............................ 70
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities ....................................... 70
SECTION 1203. Redemption of Securities for Sinking Fund........... 71
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ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance........................................ 71
SECTION 1302. Defeasance and Discharge............................ 71
SECTION 1303. Conditions to Defeasance............................ 72
SECTION 1304. Deposited Money and U.S. Government Obligations to
be
Held in Trust; Other Miscellaneous Provisions..... 74
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Indebtedness....... 75
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc., of
Company........................................... 75
SECTION 1403. No Payment When Senior Indebtedness in Default in
Payment........................................... 77
SECTION 1404. Payment Permitted if No Default..................... 77
SECTION 1405. Subrogation to Rights of Holders of Senior
Indebtedness ..................................... 77
SECTION 1406. Provisions Solely to Define Relative Rights......... 78
SECTION 1407. Trustee to Effectuate Subordination................. 78
SECTION 1408. No Waiver of Subordination Provisions............... 78
SECTION 1409. Notice to Trustee................................... 79
SECTION 1410. Reliance on Certificate of Liquidating Agent........ 80
SECTION 1411. Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................... 80
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. Applicability; Conversion Privilege and Conversion
Price............................................. 81
SECTION 1502. Exercise of Conversion Privilege.................... 81
SECTION 1503. Fractions of Shares................................. 82
SECTION 1504. Adjustment of Conversion Price...................... 83
SECTION 1505. Notice of Adjustments of Conversion Price........... 86
SECTION 1506. Notice of Certain Corporate Action.................. 86
SECTION 1507. Company to Reserve Common Stock..................... 87
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SECTION 1508. Taxes on Conversions................................ 87
SECTION 1509. Covenant as to Common Stock......................... 88
SECTION 1510. Cancellation of Converted Securities................ 88
SECTION 1511. Provisions in Case of Consolidation, Merger or Sale
of Assets......................................... 88
TESTIMONIUM........................................................ 89
SIGNATURES AND SEALS............................................... 89
ACKNOWLEDGMENTS.................................................... 90
</TABLE>
<PAGE> 10
PARTIES
INDENTURE, dated as of , 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
, 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
subordinated 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;
<PAGE> 11
2
101
(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 form and terms
thereof), such action may be taken by any committee, officer or employee of the
Company authorized to take such action by a Board Resolution.
<PAGE> 12
3
101
"Business Day", means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the 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.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor 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.
"Conversion Price" has the meaning specified in Section 1501.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered.
"Defaulted Interest" has the meaning specified in Section 307.
"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
<PAGE> 13
4
101
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.
"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 due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"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.
<PAGE> 14
5
101
"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; and
(iv) Securities converted for Common Stock pursuant to Article
Fifteen;
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.
<PAGE> 15
6
101
"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", whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"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 the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
<PAGE> 16
7
101
"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.
"Senior Indebtedness" means principal of (and premium, if any) and unpaid
interest on (a) indebtedness (secured or unsecured) incurred, assumed or
guaranteed, directly or indirectly, by the Company either before, on or after
the date of this Indenture and which is for money borrowed (including any
obligation to pay or reimburse any bank in respect of letter of credit drawings,
payment of drafts or similar transactions), or which is evidenced by notes,
debentures, bonds or other similar securities whether or not for money borrowed,
and (b) renewals, extensions or refundings of any such indebtedness, unless it
is provided by the instrument creating, evidencing, renewing, extending or
refunding the same or pursuant to which the same is outstanding, that such
indebtedness is not senior in right of payment to the Securities.
"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.
"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".
<PAGE> 17
8
102,103
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture 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
<PAGE> 18
9
103,104
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.
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 in any reasonable manner approved by the Trustee 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 for the
determination of Holders entitled to give such request, demand, authoriza-
<PAGE> 19
10
104,105,106
tion, direction, notice, consent, waiver or other Act, but 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 Department, 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 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 provided)
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,
<PAGE> 20
11
106,107,108,109,110
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 another
provision which is required or deemed to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required or deemed provisions
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.
<PAGE> 21
12
111,112,113,201
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders, 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 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 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
<PAGE> 22
13
201,202
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 together with the form of Securities 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.
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
<PAGE> 23
14
202
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 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
<PAGE> 24
15
202,203
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.
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 subordinated 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 Chemical Bank, 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 -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time on or before the close of business on or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemp-
<PAGE> 25
16
203
tion) not after, the close of business on the Redemption Date, to convert this
Security (or any portion of the principal amount hereof which is $1,000 or an
integral multiple thereof), at the [principal amount hereof] [If the Security is
an Original Issue Discount Security, insert appropriate amount], or of such
portion, into fully paid and non-assessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the Company at an
initial Conversion Price equal to $ per share of Common Stock (or at the
current adjusted Conversion Price if an adjustment has been made as provided in
the Indenture) by surrender of this Security, together with the conversion
notice hereon duly executed, to the Company at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, at which
the principal of (and premium, if any) and interest on this Security shall be
payable, accompanied by written notice to the Company that the Holder hereof
elects to convert this Security, or if less than the entire principal amount
hereof is to be converted, the portion hereof to be converted, and, in case such
surrender shall be made during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date unless this Security or the portion
hereof being converted has been called for redemption on a Redemption Date
within such period, also accompanied by payment to the Company or its order, in
New York Clearing House funds or other funds acceptable to the Company, of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid
requirement for payment by the Holder hereof and, in the case of a conversion
after the Regular Record Date next preceding any Interest Payment Date and on or
before such Interest Payment Date, to the right of the Holder of this Security
(or any Predecessor Security) of record at such Regular Record Date to receive
an installment of interest, no payment or adjustment is to be made on conversion
for interest accrued hereon or (with certain exceptions provided in the
Indenture) for dividends on the Common Stock issued on conversion. No fractions
of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest the Company shall pay a cash
adjustment as provided in the Indenture. The Conversion Price is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations or mergers to which the Company is a
party or transfer of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be
<PAGE> 26
17
203
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of
the number of shares of Common Stock into which this Security might have been
converted immediately prior to such consolidation, merger, sale or transfer
(assuming such holder of Common Stock failed to exercise any rights of election
and received per share the kind and amount received per share by a plurality of
non-electing shares).].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 15 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,
<TABLE>
<CAPTION>
REDEMPTION YEAR REDEMPTION
YEAR PRICE ---- PRICE
<C> <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 15 days' notice by mail, (1) on ........ in any
year commencing with the year .... and ending with the year ....
<PAGE> 27
18
203
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 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
---- ----------------- ----------------
<C> <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
<PAGE> 28
19
203
otherwise than through [mandatory] sinking fund payments or converted into
Common Stock or otherwise acquired by the Company may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made -- in
the inverse order in which they become due.]
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 Securities are subordinated to Senior Indebtedness (as such term is
defined in the Indenture) on the terms and conditions set forth in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities 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
<PAGE> 29
20
203
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, 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
<PAGE> 30
21
203,204
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.
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.
as Trustee
By...................................
Authorized Officer
<PAGE> 31
22
205,301
SECTION 205. Form of Notice of Conversion.
ELECTION TO CONVERT
TO ANADARKO PETROLEUM CORPORATION:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security or the portion hereof below designated into
shares of Common Stock of ANADARKO PETROLEUM CORPORATION in accordance with the
terms of the Indenture referred to in this Security, and directs that the shares
issuable and deliverable upon conversion, together with any check in payment for
a fractional share, be issued and delivered to the Holder of this Security,
unless a different name has been indicated below. If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid, and
any executed instruments of transfer required to be delivered by the undersigned
in connection with such conversion accompanies this Security.
Dated
If shares are to be issued otherwise than to the Holder, please print name,
address, city, state, zip code and social security or other identifying number
of such person.
- ------------------------------------------
SOC SEC NO OR EIN
- ------------------------------------------
- ------------------------------------------
- ------------------------------------------
Please print name and address
(including zip code number)
- ------------------------------------------
Signature(s)
- ------------------------------------------
[Signature(s) must correspond with the name as written upon the face of the
certificate in every particular, without alteration or enlargement or any change
whatever]
Portion to be converted (in multiples of $1,000 if less than all)
$ ,000
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
<PAGE> 32
23
301
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 basis on which interest shall be calculated if other than a
360-day year consisting of 12 30-day months, the Interest Payment Dates on
which such 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) the terms and conditions, if any, pursuant to which the Securities
of the series are convertible into Common Stock of the Company;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
<PAGE> 33
24
301
(10) 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;
(11) 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 other Securities shall be
payable;
(12) 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;
(13) 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;
(14) 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
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and 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
<PAGE> 34
25
301,302,303
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities 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.
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 the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive 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 form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 201, that such
<PAGE> 35
26
303,304
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, 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.
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 which they are issued and with
such appropriate insertions, omissions,
<PAGE> 36
27
304,305
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 one of its offices or agencies a
register or registers (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
initially 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, 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, 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 the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
<PAGE> 37
28
305
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
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
<PAGE> 38
29
305
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, upon receipt of a Company Order for the
authentication and delivery of Securities in definitive registered form, 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 terms, 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 Global
Security and the aggregate principal amount of Securities authenticated and
delivered pursuant to clause (1) above.
<PAGE> 39
30
305,306
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 expenses (including
the fees and expenses of the Trustee) connected therewith.
<PAGE> 40
31
306,307
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 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
<PAGE> 41
32
307
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.
In the case of any Security or portion thereof which is surrendered for
conversion after the Regular Record Date next preceding any Interest Payment
Date and on or prior to such next succeeding Interest Payment Date (unless such
Security or portion thereof which is being surrendered for conversion has been
called for redemption on a Redemption Date within such period), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date provided,
however, that such payment of interest shall be subject to the payment to the
Company by the Holder of
<PAGE> 42
33
307,308,309,310
such Security or portion thereof surrendered for conversion (such payment to
accompany such surrender) of an amount equal to the amount of such interest, in
accordance with Section 1502. Except as otherwise provided in the immediately
preceding sentence, in the case of any Security which is converted, interest
whose Stated Maturity is after the date of conversion of such Security shall not
be payable.
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 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
destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled Securities be
returned to it.
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 360-day year of twelve 30-day months.
<PAGE> 43
34
401
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 (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
the 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;
<PAGE> 44
35
401,402,501
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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
<PAGE> 45
36
501
(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 instalment, 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 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
<PAGE> 46
37
501,502
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 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
<PAGE> 47
38
502,503
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,
(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 sinking fund payment when such interest or
deposit 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
<PAGE> 48
39
503,504
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 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
<PAGE> 49
40
504,505,506
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities 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:
<PAGE> 50
41
506,507
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: Subject to Article Fourteen, 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; and
THIRD: To the Company of any remaining amounts.
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
<PAGE> 51
42
507,508,509,510
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 Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities 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.
<PAGE> 52
43
511,512,513
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 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.
<PAGE> 53
44
514,515
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security 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.
<PAGE> 54
45
601
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 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 Sec-
<PAGE> 55
46
601,602
tion 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.
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 the board of directors,
the executive committee or a trust committee of directors or 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.
<PAGE> 56
47
603
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request 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; and
<PAGE> 57
48
603,604,605,606,607
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trust-
ee'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 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 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed 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
<PAGE> 58
49
607,608,609
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and 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 Borough of
Manhattan, 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. 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.
<PAGE> 59
50
610
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.
(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.
<PAGE> 60
51
610,611
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, 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
<PAGE> 61
52
611
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 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 Securi-
<PAGE> 62
53
611,612,613
ties 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.
(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.
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, manufacture, 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
<PAGE> 63
54
613,614
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.
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,
<PAGE> 64
55
614
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 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:
<PAGE> 65
56
614,701,702
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
As Trustee
By...................................
As Authenticating Agent
By...................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 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.
<PAGE> 66
57
702
(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
(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.
<PAGE> 67
58
702,703,704,801
(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).
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 May 15, and shall be transmitted within 60
days after May 15 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
<PAGE> 68
59
801,802,901
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 and shall have provided for conversion rights in
accordance with Section 1511;
(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,
<PAGE> 69
60
901
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 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 to all or any series of
Securities; 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 establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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);
(8) to make provision with respect to the conversion rights, if any,
of Holders of Securities pursuant to the requirements of Article 15 hereof;
or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
<PAGE> 70
61
901,902
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 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 adversely affect the right to convert any
security as provided in Article Fifteen or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders, 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
<PAGE> 71
62
902,903,904,905
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 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.
<PAGE> 72
63
906,907,1001,1002
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall adversely
affect the rights of any holder of Senior Indebtedness under Article Fourteen
without the consent of such holder.
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, where Securities may be surrendered
for conversion 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
<PAGE> 73
64
1002,1003
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.
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 without any interest for the period from the due date
until such 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:
<PAGE> 74
65 1003
(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.
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 mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
<PAGE> 75
1004,1005,1101,1102 66
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.
SECTION 1005. 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 shall not be deemed to be an Officers'
Certificate within the meaning of this Indenture and need not conform with any
of the provisions of 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, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to him or
her and the nature thereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of
<PAGE> 76
67 1102,1103,1104
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 45 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.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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,
<PAGE> 77
1104,1105,1106 68
(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,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) any other information relevant to any particular series.
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.
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)
<PAGE> 78
69 1106,1107,1201,1202
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, 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.
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 acquired or redeemed either at the election of the
Company pursuant to the terms of such Securities or
<PAGE> 79
1202,1203,1301 70
through the application of permitted optional sinking fund payments or which
have been converted into Common Stock or otherwise acquired by the Company
pursuant to the terms of such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 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.
The Company may at its option by or pursuant to a board resolution, at any
time, with respect to the Securities of a series, elect to have Section 1302 be
applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
<PAGE> 80
71 1302,1303
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 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
including but not limited to the right of the Trustee to compensation and
reimbursement pursuant to Section 607 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
<PAGE> 81
1303 72
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, for the payment of
which its full faith and credit is pledged, which, in either case, are not
callable or redeemable 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.
<PAGE> 82
73 1303,1304
(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 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 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
<PAGE> 83
1304,1401,1402 74
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.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, whether upon original issue or upon transfer or assignment,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth, the payment of the principal of (and premium, if any) and interest on
each and all of the Securities is hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc., of
Company.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its property, and in the event of any voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving insolvency or
bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness before the Holders of the Securities are entitled to receive
any payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end (but subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
by the provisions of this Article upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof by a lawful plan
of reorganization under applicable bankruptcy law) the holders of Senior
Indebtedness shall be entitled to receive any payment or distribution of any
kind or character, whether in cash, property or securities, which may be payable
or deliverable in any such case or proceeding in respect of the Securities,
except securities of the Company
<PAGE> 84
75 1402
which are subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness then outstanding.
In the event that, notwithstanding the foregoing, the Trustee or the Holder
of any Security shall have received any payment or distribution of any kind or
character, whether in cash, property or securities (other than as aforesaid),
before all Senior Indebtedness is paid in full or payment thereof provided for,
and if such fact shall then have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, agent or other Person making payment or
distribution of assets or securities of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
In the event that any Securities are declared due and payable before their
Stated Maturity because of the occurrence of an Event of Default (under
circumstances when the provisions of the foregoing paragraph shall not be
applicable), the holders of the Senior Indebtedness outstanding at the time such
Securities become due and payable because of such occurrence of an Event of
Default shall be entitled to receive payment in full of all amounts due or to
become due or in respect of all Senior Indebtedness before the Holders of the
Securities are entitled to receive any payment on account of the principal of
(or premium, if any) or interest on the Securities.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as an
entirety to another corporation upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
<PAGE> 85
1403,1404,1405 76
SECTION 1403. No Payment When Senior Indebtedness in Default in Payment.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Indebtedness
beyond any applicable period of grace, unless and until such default in payment
shall have been cured or waived or shall have ceased to exist, or (b) in the
event any judicial proceeding shall be pending with respect to any such default
in payment, then no payment of principal of (or premium, if any) or interest on
the Securities shall be made by the Company; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Twelve by means of Securities redeemed or acquired prior
to such default in payment or by means of conversion Securities.
SECTION 1404. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any case or proceeding, or any dissolution or other winding up
referred to in Section 1402 or under the other conditions described in Section
1402 or the conditions described in Section 1403 from making payments at any
time of principal of (and premium, if any) or interest on the Securities, or (b)
the application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities if, at the time of such application, the Trustee did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 1405. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article) to the rights of the holders of such Senior
Indebtedness to receive payments or distributions from the Company applicable to
the Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebted-
<PAGE> 86
77 1405,1406,1407,1408
ness by Holders of the Securities or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 1406. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall effect the relative
rights against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property or securities of the Company
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1407. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof, whether upon original
issue or upon transfer or assignment, authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
<PAGE> 87
1408,1409 78
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations of the
Holders of the Securities to the holders of the Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1409. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment of money to
or by the Trustee in respect of the Securities pursuant to the provisions of
this Article. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article, unless and until a responsible officer of the Trustee shall have
received at its Corporate Trust Office written notice thereof from the Company
or a holder or holders of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee on behalf of any such holder. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by
<PAGE> 88
79 1409,1410,1411,1501
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1410. Reliance on Certificate of Liquidating Agent.
Upon any payment or distribution referred to in this Article, the Trustee,
subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness. The Trustee's duties to holders of Senior Indebtedness are
limited to those specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
The Trustee shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. Applicability; Conversion Privilege and Conversion Price.
Securities of any series which are convertible into Common Stock shall be
convertible in accordance with their terms and (except as otherwise
<PAGE> 89
1501,1502 80
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Subject to and upon compliance with the provisions of this Article Fifteen,
at the option of the Holder thereof, any Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000 may
be converted at the principal amount thereof, (or, with respect to Original
Issue Discount Securities, at the amount determined pursuant to Section 301), or
of such portion thereof, into fully paid and nonassessable shares (calculated as
to each conversion to the nearest one-hundredth of a share) of Common Stock, at
the Conversion Price, determined as hereinafter provided, in effect at the time
of conversion. Such conversion right shall expire at the close of business on
the date specified for Securities of such Series. In case a Security or portion
thereof is called for redemption, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be the price specified
in relation to Securities of such series pursuant to Section 301. The Conversion
Price shall be adjusted in certain instances as provided in paragraphs (1), (2),
(3), (4) and (7) of Section 1504.
SECTION 1502. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Security
to be converted shall surrender such Security, together with the conversion
notice duly executed, at any office or agency of the Company maintained for that
purpose pursuant to Section 1002, accompanied by written notice to the Company
at such office or agency that the Holder elects to convert such Security or, if
less than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Securities or portions thereof surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (unless such Securities or portions thereof have
been called for redemption on a Redemption Date within such period) be
accompanied by payment to the Company or its order, in New York Clearing House
funds or other funds acceptable to the Company, of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of
Securities or portions thereof being surrendered for conversion. No payment or
<PAGE> 90
81 1502,1503,1504
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities surrendered for conversion or, except as provided in Section
1504, on account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1503.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 1503. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of any fractional share of Common Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price (determined as provided in the
last sentence of paragraph 6 of Section 1504) at the close of business on the
day of conversion.
SECTION 1504. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other distribution
on any class of capital stock of the Company in Common Stock, the Conversion
Price in effect at the opening of business on the day
<PAGE> 91
1504 82
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the market price (determined as provided in
paragraph (6) of this Section) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect at the opening of business on the day following the
date fixed for such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such market price and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such reduction
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Price in
<PAGE> 92
83 1504
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, any dividend or distribution paid in cash out of the retained
earnings of the Company and any dividend or distribution referred to in
paragraph (1) of this Section), the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the market price per share (determined
as provided in paragraph (6) of this Section) of the Common Stock on the date
fixed for such determination, reduced by the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidence of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such market price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(5) The reclassification of Common Stock into securities including other
than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 1511 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination") within the meaning of
paragraph (4) of this Section, and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately prior to
such reclassification into the num-
<PAGE> 93
1504,1505 84
ber of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of paragraph
(3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this
Section, the market price on any date shall be deemed to be the average of the
daily market prices for the ten consecutive Business Days selected by the
Company commencing not less than ten nor more than 80 Business Days before the
day in question. The closing price for each day shall be the last reported sales
price regular way on the composite tape or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as furnished by any
New York Stock Exchange member firm selected from time to time by the Company
for that purpose.
(7) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs (1), (2), (3) and (4) of this Section,
as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
SECTION 1505. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 1504 and shall prepare a certificate signed by the
Treasurer or an Assistant Treasurer, the Controller or an Assistant
Controller of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed with the Trustee and at each
office or agency maintained for the purpose of conversion of Securities
pursuant to Section 1002; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be
<PAGE> 94
1505,1506 85
required, and as soon as practicable after it is required, such notice
shall be prepared by the Company, filed with the Trustee and mailed by the
Company to all Holders at their last addresses as they shall appear in the
Security Register.
SECTION 1506. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on Common Stock payable otherwise than in cash out of its retained
earnings; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock), or
of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Securities pursuant to
Section 1002, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 20 days (or
ten days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give notice required by this Section or
<PAGE> 95
1506,1507,1508,1509,1510,1511 86
any defect therein shall not affect the legality or validity of any dividend,
distribution, rights, warrants, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or the vote on any such
action.
SECTION 1507. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
SECTION 1508. Taxes on Conversions.
The Company will pay any and all transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant thereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
SECTION 1509. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable.
SECTION 1510. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee
for cancellation and the Trustee shall dispose of the same as provided in
Section 309.
SECTION 1511. Provisions in Case of Consolidation, Merger or Sale of
Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other corporation, any merger of another corporation into the Company
(other than a merger which does not result in any
<PAGE> 96
87 1511
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company) or any sale or transfer of all or substantially all
of the assets of the Company, the corporation formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in Section
1501, to convert such Security only into the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by a holder of the number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to such consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Company
(i) is not a corporation with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent corporation"), or an
Affiliate of a constituent corporation and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company held immediately prior to such consolidation,
merger, sale or transfer by others than a constituent corporation or an
Affiliate thereof and in respect of which such rights of election shall not have
been exercised ("non-electing share"), then for the purpose of this Section the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non- electing shares). Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The above provisions of this Section
shall similarly apply to successive consolidations, mergers, sales or transfers.
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> 97
1511 88
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
[CORPORATE SEAL] CORPORATION
BY
ATTEST:
[CORPORATE SEAL] as Trustee
By
ATTEST:
<PAGE> 98
89
<TABLE>
<S> <C>
STATE OF D
COUNTY OF HARRIS C
</TABLE>
On the day of , before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
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.
<TABLE>
<S> <C>
STATE OF D
COUNTY OF C
</TABLE>
On the day of , before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
of , 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.
<PAGE> 1
EXHIBIT 5
July 8, 1997
Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060
Dear Sirs:
We have acted as special counsel to Anadarko Petroleum Corporation (the
"Company") in connection with the Company's Registration Statement on Form S-3
being filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, with respect to the contemplated issuance by the Company
from time to time of up to $300,000,000 aggregate initial offering price of Debt
Securities, Preferred Stock and/or Common Stock (collectively, the
"Securities"). The Debt Securities are to be issued pursuant to a Senior
Indenture between the Company and Harris Trust and Savings Bank, as trustee, the
form of which has been filed as an Exhibit to the Registration Statement (the
"Senior Indenture") or a Subordinated Indenture between the Company and First
Chicago NBD, as trustee, the form of which has been filed as an Exhibit to the
Registration Statement (the "Subordinated Indenture").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purpose of rendering this opinion.
<PAGE> 2
Anadarko Petroleum Corporation -2- July 8, 1997
On the basis of the foregoing, we are of the opinion that:
(1) when the Senior Indenture or the Subordinated
Indenture has been duly authorized, executed and delivered and
when the specific terms of a particular Debt Security have
been duly authorized and established in accordance with the
Senior Indenture or the Subordinated Indenture, as the case
may be, and such Debt Security has been duly authorized and
executed, authenticated, issued and delivered in accordance
with the Senior Indenture or the Subordinated Indenture, as
the case may be, against payment therefor in accordance with
the applicable underwriting or other agreement, such Debt
Security will constitute the valid and binding obligation of
the Company; and
(2) the shares of Common Stock, par value $0.10 per
share, of the Company (the "Common Stock"), and the shares of
Preferred Stock, par value $1.00 per share, of the Company
(the "Preferred Stock"), when such shares of Common Stock or
Preferred Stock, as the case may be, have been duly
authorized, issued and delivered against payment therefor in
accordance with the applicable underwriting or other
agreement, will be validly issued, fully paid and
non-assessable.
In connection with our opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such Security, the Registration
Statement has been declared effective, that the authorization of the Securities
will be applicable to such Security, will not have been modified or rescinded
and there will not have occurred any change in law affecting the validity or
enforceability of such Security. We have also assumed that none of the terms of
any Security to be established subsequent to the date hereof nor the issuance
and delivery of such Security, nor the compliance by the Company with the terms
of such Security, will violate any applicable law or will result in a violation
of any provision of any instrument or agreement then binding upon the Company,
or any restriction imposed by any court or governmental body having jurisdiction
over the Company.
<PAGE> 3
Anadarko Petroleum Corporation -3- July 8, 1997
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement of the Company relating to the Securities and to the
reference to our name in the Prospectus contained therein.
Very truly yours,
/s/ Davis Polk & Wardwell
<PAGE> 1
EXHIBIT 12
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED STATEMENT OF COMPUTATION OF RATIOS
OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
THREE MONTHS ENDED MARCH 31, 1997 AND FIVE YEARS ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
Three Months
Ended
March 31 Years Ended December 31
-------------- -----------------------------------------------------------
thousands 1997 1996 1995 1994 1993 1992
---- ---- ---- ----- ------ ------
<S> <C> <C> <C> <C> <C>
Gross Income $63,203 $196,763 $65,624 $90,794 $106,824 $68,311
Rentals 1,575 4,234 2,457 2,814 3,069 2,737
------- -------- ------- ------- --------- -------
Earnings 64,778 200,997 68,081 93,608 109,893 71,048
======= ======== ======= ======= ======= =======
Gross Interest Expense 13,928 55,986 52,557 41,635 38,000 36,620
Rentals 1,575 4,234 2,457 2,814 3,069 2,737
------- -------- ------- ------- -------- -------
Fixed Charges $15,503 $ 60,220 $55,014 $44,449 $ 41,069 $39,357
======= ======== ======= ======= ======== =======
Ratio of Earnings to Fixed
Charges 4.18 3.34 1.24 2.11 2 .68 1.81
======= ======== ======= ======= ======== =======
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings by
fixed charges. For this purpose, earnings include income before income taxes
and fixed charges. Fixed charges include interest and amortization of debt
expenses, and the estimated interest component of rentals. Certain amounts for
prior years have been restated to conform to the current presentation.
During the three months ended March 31, 1997 and five years ended December 31,
1996, there were no shares of preferred stock outstanding. Accordingly, the
ratio of earnings to combined fixed charges and preferred stock dividends for
the three months and each of the five years is the same as the ratio of
earnings to fixed charges.
<PAGE> 1
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Anadarko Petroleum Corporation:
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Houston, Texas
July 8, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or
Director of ANADARKO PETROLEUM CORPORATION (the "Company"), a Delaware
corporation, does hereby constitute and appoint SUZANNE SUTER and MICHAEL E.
ROSE, and each of them, his true and lawful attorney and agent to do any and
all acts and things and execute any and all instruments which, with the advice
of Counsel, said attorney and agent may deem necessary or advisable to enable
the Company to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission
in connection with the filing under said Act of the Form S-3 Registration
Statement registering debt and equity securities, including specifically, but
without limitation thereof, to sign his name as an Officer and/or Director of
the Company to the Form S-3 Registration Statement filed with the Securities
and Exchange Commission, and to any instrument or document filed as a part of,
or in connection with, said Form S-3 Registration Statement or amendment
thereto; and the undersigned does hereby ratify and confirm all that said
attorney and agent shall do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents
this 8th day of July, 1997.
/s/ Robert J. Allison, Jr. /s/ James L. Bryan
- --------------------------------------- ------------------------------------
Robert J. Allison, Jr. James L. Bryan
/s/ Conrad P. Albert /s/ John R. Butler, Jr.
- --------------------------------------- ------------------------------------
Conrad P. Albert John R. Butler, Jr.
/s/ Larry Barcus /s/ John R. Gordon
- --------------------------------------- ------------------------------------
Larry Barcus John R. Gordon
/s/ Ronald Brown /s/ Michael E. Rose
- --------------------------------------- ------------------------------------
Ronald Brown Michael E. Rose
/s/ J. R. Larson /s/ Suzanne Suter
- --------------------------------------- ------------------------------------
J. R. Larson Suzanne Suter
<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a trustee
Pursuant to Section 305(b) ____
HARRIS TRUST AND SAVINGS BANK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
Illinois 36-1194448
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NUMBER)
111 West Monroe Street 60603
Chicago, Illinois
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Mark F. McLaughlin
Harris Trust and Savings Bank
111 West Monroe Street, Chicago, Illinois
(312) 461-2531
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------------------
ANADARKO PETROLEUM CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Delaware 76-0146568
(STATE OR OTHER JURISDICTION OF (I.R.S.EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
17001 Northchase Drive
Houston, Texas 77060-2141
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
------------------------------
Debt Securities
(TITLE OF INDENTURE SECURITIES)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the Trustee, describe each such
affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as
now in effect and includes the authority of the Trustee to
commence business and to exercise corporate trust powers was filed
in connection with the Registration Statement of Louisville Gas
and Electric Company, File No. 2-44295, and is incorporated herein
by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of C-Cube Microsystems
Inc., File No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 3 of this statement)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 8th day of July,1997.
HARRIS TRUST AND SAVINGS BANK
By: /s/ AMY S. ROBERTS
------------------------------
Amy S. Roberts
Assistant Vice President
2
<PAGE> 3
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby
consents that reports of examinations of said trustee by Federal and
State authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ AMY S. ROBERTS
--------------------------------
Amy S. Roberts
Assistant Vice President
3
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1997, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[HARRIS BANK LOGO]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1997, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve
System. Published in accordance with a call made by the Commissioner of Banks
and Trust Companies of the State of Illinois and by the Federal Reserve Bank of
this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin ......................... $ 1,594,951
Interest bearing balances ................................................... $ 620,847
Securities: ............................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 3,674,321
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBF's:
Federal funds sold........................................................... $ 447,375
Securities purchased under agreements to resell.............................. $ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income..................................... $8,499,011
LESS: Allowance for loan and lease losses................................... $110,978
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b)......................................................... $ 8,388,033
Assets held in trading accounts ......................................................... $ 126,309
Premises and fixed assets (including capitalized leases)................................. $ 188,993
Other real estate owned.................................................................. $ 446
Investments in unconsolidated subsidiaries and associated companies...................... $ 53
Customer's liability to this bank on acceptances outstanding............................. $ 66,859
Intangible assets........................................................................ $ 292,918
Other assets............................................................................. $ 495,997
TOTAL ASSETS $15,897,102
</TABLE>
4
<PAGE> 5
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices ..................................................................... $ 8,252,773
Non-interest bearing ............................................................ $3,414,150
Interest bearing ............................................................ $4,838,623
In foreign offices, Edge and Agreement subsidiaries, and IBF's .......................... $ 1,989,792
Non-interest bearing............................................................. $ 54,391
Interest bearing ................................................................ $1,935,401
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased & securities sold under agreements to repurchase................. $ 2,896,616
Trading Liabilities 81,381
Other borrowed money: .......................................................................
a. With remaining maturity of one year or less $ 991,442
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 66,859
Subordinated notes and debentures............................................................ $ 310,000
Other liabilities............................................................................ $ 138,427
TOTAL LIABILITIES $14,727,290
EQUITY CAPITAL
Common stock .............................................................................. $ 100,000
Surplus .................................................................................... $ 600,566
a. Undivided profits and capital reserves ................................................. $ 519,518
b. Net unrealized holding gains (losses) on available-for-sale securities $ (50,272)
TOTAL EQUITY CAPITAL $ 1,169,812
Total liabilities, limited-life preferred stock, and equity capital ........................ $15,897,102
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/97
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and, to the
best of our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
the Commissioner of Banks and Trust Companies of the State of Illinois and is
true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
Directors.
5
<PAGE> 1
EXHIBIT 25(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
_______________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
_______________________
ANADARKO PETROLEUM CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 76-0146568
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
17001 NORTHCHASE DRIVE
HOUSTON, TEXAS 77060-2141
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago and the State of Illinois, on this 8th day of July, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY
SECTION 321(b) OF THE ACT
July 8, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Anadarko
Petroleum Corporation and The First National Bank of Chicago, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from
Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . 0081 3,871,170 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . 0071 6,498,314 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D) . . . . . . . . . . . . . . . . . . . . . . . . . 1773 3,901,208 2.b.
3. Federal funds sold and securities purchased under agreements
to resell . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 4,612,975 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 23,345,201 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . RCFD 3123 420,963 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . 2125 22,924,238 4.d.
5. Trading assets (from Schedule RD-D) . . . . . . . . . . . . . 3545 8,792,158 5.
6. Premises and fixed assets (including capitalized leases) . . 2145 706,928 6.
7. Other real estate owned (from Schedule RC-M) . . . . 2150 6,563 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . 2130 61,551 8.
9. Customers' liability to this bank on acceptances outstanding 2155 488,866 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . 2143 291,569 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . 2160 1,775,283 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . 2170 53,930,823 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
---------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part 1) . . . . . . . . . . RCON 2200 21,550,056 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . RCON 6631 8,895,137 13.a.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . RCON 6636 12,654,919 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II) . . . . . . . . RCFN 2200 12,364,650 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . RCFN 6631 287,496 13.b.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . RCFN 6636 12,077,154 13.b.2
14. Federal funds purchased and securities sold under
agreements to repurchase: RCFD 2800 3.817,421 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . RCON 2840 63,621 15.a.
b. Trading Liabilities(from Schedule RC-D) . . . . . . . RCFD 3548 5,872,831 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . RCFD 2332 2,607,549 16.a.
b. With original maturity of more than one year . . . . . RCFD 2333 322,414 16b.
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 488,866 18.
19. Subordinated notes and debentures . . . . . . . . . . . . RCFD 3200 1,550,000 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . RCFD 2930 1,196,229 20.
21. Total liabilities (sum of items 13 through 20) . . . . . RCFD 2948 49,833,637 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred
stock) . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3839 2,944,244 25.
26. a. Undivided profits and capital reserves . . . . . . . . RCFD 3632 954,885 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . . RCFD 8434 (1,089) 26.b.
27. Cumulative foreign currency translation adjustments . . . RCFD 3284 (1,712) 27.
28. Total equity capital (sum of items 23 through 27) . . . . RCFD 3210 4,097,186 28.
29. Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22, and 28) . . . . . . RCFD 3300 53,930,823 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the bank ------------
by independent external auditors as of any date during 1996 . . . . . . . . . . . . RCFD 6724 . . . | 2 | M.1.
------------
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
