<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1994
REGISTRATION NO. 33-52683
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT
NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
UNION TEXAS PETROLEUM HOLDINGS, INC. DELAWARE 76-0040040
UNION TEXAS EAST KALIMANTAN LIMITED THE BAHAMAS N/A
UNION TEXAS PETROLEUM ENERGY CORPORATION DELAWARE 76-0351014
UNION TEXAS INTERNATIONAL CORPORATION DELAWARE 76-6044301
UNION TEXAS PRODUCTS CORPORATION DELAWARE 76-0040039
UNISTAR, INC. DELAWARE 76-0108150
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
IN ITS CHARTER) OF INCORPORATION OR ORGANIZATION IDENTIFICATION NO.)
1330 POST OAK BOULEVARD NEWTON W. WILSON, III
HOUSTON, TEXAS 77056 GENERAL COUNSEL, VICE PRESIDENT -- ADMINISTRATION
(713) 623-6544 AND SECRETARY
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, 1330 POST OAK BOULEVARD
INCLUDING AREA CODE, OF EACH REGISTRANT'S PRINCIPAL HOUSTON, TEXAS 77056
EXECUTIVE OFFICES) (713) 623-6544
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
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Copy to:
MARK ZVONKOVIC
CHRISTINE B. LAFOLLETTE
ANDREWS & KURTH L.L.P.
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 850-2800
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as determined by
market conditions.
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
TITLE OF EACH AMOUNT OFFERING PRICE PROPOSED AMOUNT OF
CLASS OF SECURITIES TO BE PER DEBT MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED SECURITY(1) OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities(2).............................. $200,000,000 100% $200,000,000 $68,966(3)
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Subsidiary Guarantees(4)........................ (5) (5) (5) (4)
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Company Guarantees(4)........................... (5) (5) (5) (4)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2) There are being registered hereunder an indeterminate amount of Debt
Securities. If any Debt Securities are being issued at an original issue
discount, then the offering price shall be in such greater principal amount
as shall result in an aggregate initial offering price not to exceed
$200,000,000, less the dollar amount of any securities previously issued
hereunder. In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration Statement
exceed $200,000,000, or its equivalent if some or all of the securities are
denominated in one or more foreign currencies.
(3) Previously paid.
(4) Each Registrant other than Union Texas Petroleum Holdings, Inc., is a
subsidiary of Union Texas Petroleum Holdings, Inc. and may be guaranteeing
payment of the Debt Securities. Union Texas Petroleum Holdings, Inc. may
guarantee such subsidiary guarantees. Pursuant to Rule 457(n) under the
Securities Act of 1933, no registration fee is required with respect to
these guarantees.
(5) Not applicable pursuant to Form S-3 General Instruction II.D. No separate
consideration will be received from purchasers of the Debt Securities with
respect to these guarantees.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
***************************************************************************
* *
* 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, DATED MAY 24, 1994
PROSPECTUS
(LOGO) UNION TEXAS PETROLEUM HOLDINGS, INC.
DEBT SECURITIES
---------------------
Union Texas Petroleum Holdings, Inc. (the "Company") may offer from time to
time unsecured debt securities ("Debt Securities") consisting of debentures,
notes and/or other evidences of unsecured indebtedness in one or more series, or
any combination of the foregoing, at an aggregate initial offering price not to
exceed $200,000,000, or its equivalent if some or all of the Debt Securities are
denominated in one or more foreign currencies, at prices and on terms to be
determined at or prior to the time of sale in light of market conditions at the
time of sale.
Specific terms of the particular Debt Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Debt Securities and the initial price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Debt Securities, without limitation, the
following: the specific designation, aggregate principal amount, ranking as
senior debt or subordinated debt, authorized denomination, maturity, rate or
method of calculation of interest and dates for payment thereof, any
exchangeability, conversion, redemption, prepayment or sinking fund provisions,
the currency or currencies or currency unit or currency units in which
principal, premium, if any, or interest, if any, is payable, any modifications
of or additions to the covenants described in this Prospectus and any other
specific terms thereof. The Company's obligations under the Debt Securities may
be guaranteed by certain of its subsidiaries for the purpose of providing that
the Debt Securities will not be structurally subordinated to the Company's
obligations under its credit facility, 8.25% Senior Notes due 1999 or any other
funded indebtedness of the Company that is guaranteed, from time to time, by
such subsidiaries of the Company. The amounts payable by the Company in respect
of Debt Securities may be calculated by reference to the value, rate or price of
one or more specified commodities, currencies or indices to the extent set forth
in the Prospectus Supplement. The Prospectus Supplement will also contain
information, where applicable, about certain United States federal income tax
considerations relating to the Debt Securities covered by the Prospectus
Supplement.
The Company may sell the Debt Securities directly, through agents
designated from time to time or through underwriters or dealers. If any agents
of the Company or any underwriters or dealers are involved in the sale of the
Debt Securities, the names of such agents, underwriters or dealers, any
applicable commissions and discounts, and the net proceeds to the Company will
be set forth in the applicable Prospectus Supplement. See "Plan of Distribution"
for possible indemnification arrangements for agents, underwriters and dealers.
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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.
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The date of this Prospectus is , 1994.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT, AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY ANY DEBT SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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AVAILABLE INFORMATION
Union Texas Petroleum Holdings, Inc. is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at certain of the Commission's Regional Offices located at 7
World Trade Center, 13th Floor, New York, NY 10048 and 500 West Madison Street,
Suite 1400, Chicago, IL 60601. Copies of such materials can be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549, at prescribed rates. In addition, the
Company's common stock, par value $.05 per share, is listed on the New York
Stock Exchange and the Pacific Stock Exchange, and the Company's 8.25% Senior
Notes due 1999 (the "8.25% Senior Notes") are listed on the New York Stock
Exchange. The Company's reports, proxy statements and other information filed
under the Exchange Act may also be inspected and copied at the offices of the
New York Stock Exchange, 20 Broad Street, New York, NY 10005 and the Pacific
Stock Exchange, 301 Pine Street, San Francisco, CA 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). 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, reference is hereby made to the Registration Statement and to the
exhibits and schedules filed therewith. All of these documents may be inspected
without charge at the Commission's principal office in Washington, D.C., and
copies thereof may be obtained from the Commission at the prescribed rates or
may be examined without charge at the public reference facilities of the
Commission.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-9019)
pursuant to the Exchange Act are incorporated herein by reference: the Company's
Annual Report on Form 10-K for the year ended December 31, 1993; its Quarterly
Report on Form 10-Q for the quarter ended March 31, 1994; and its Current
Reports on Form 8-K filed April 21, 1994 and April 28, 1994.
All other documents filed by the Company pursuant to Section 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 any series of Debt 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 contained in a
document all or a portion of which is incorporated or deemed to be 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
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified shall not be deemed to constitute a part of this Prospectus except as
so modified, and any statement so superseded shall not be deemed to constitute
part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all documents which
are incorporated herein by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to the Company, at its principal
executive offices at 1330 Post Oak Boulevard, Houston, TX 77056, Attention:
Corporate Secretary, telephone (713) 623-6544.
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Quantities of natural gas are expressed in this Prospectus in terms of
thousand cubic feet ("Mcf"), million cubic feet ("MMcf") or billion cubic feet
("Bcf"). Oil is quantified in terms of barrels ("Bbls"). Gas is converted into a
barrel of oil equivalent ("boe") based on 5.8 Mcf of gas to one barrel of oil.
---------------------
IN CONNECTION WITH THE OFFERING OF DEBT SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF SUCH SECURITIES OFFERED HEREBY OR OTHER SECURITIES OF THE COMPANY AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS
MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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THE COMPANY
The Company, the successor to a corporation founded in 1896, is an
independent (non-integrated) oil and gas company with worldwide operations. At
December 31, 1993, the Company had net proved oil and gas reserves of 381
million boe. The Company's average net daily oil and gas production during 1993
was approximately 40,000 Bbls and 373 MMcf, respectively. Substantially all of
the Company's oil and gas activities are currently conducted outside of the
United States, primarily in the U.K. sector of the North Sea, Indonesia and
Pakistan. The Company participates worldwide in new venture exploration for oil
and gas. Current activity includes interests in prospects in the United Kingdom,
eastern Indonesia, Pakistan, Alaska, offshore Argentina, offshore Ireland and
offshore Tunisia. The Company also owns an interest in a U.S.-based
petrochemicals business.
As used herein, the "Company" means Union Texas Petroleum Holdings, Inc.
and its subsidiaries unless the context requires otherwise. Two limited
partnerships organized and controlled by an affiliate of Kohlberg Kravis Roberts
& Co. own approximately 38% of the Company's issued and outstanding common
stock. The address and telephone number of the Company's principal executive
offices are 1330 Post Oak Boulevard, Houston, TX 77056, (713) 623-6544.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Debt
Securities for general corporate purposes, which may include the repayment of
outstanding indebtedness. Any specific allocations of the proceeds to a
particular purpose that have been made at the date of any Prospectus Supplement
will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was as follows for the
years and periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
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1989 1990 1991 1992 1993 1993 1994
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<S> <C> <C> <C> <C> <C> <C>
3.60 3.47 4.94 7.93 1.61 7.17 10.35
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of pretax income plus fixed charges. Fixed charges consist of interest
expense, capitalized interest, amortization of discount and financing costs and
the portion of rent expense which is deemed to be representative of the interest
component of rent expense. During the third quarter of 1993, the Company
recorded a non-cash charge to depreciation, depletion and amortization of $103
million pretax ($48 million after-tax) for the write-down of its investment in
the U.K. North Sea's Piper field. Excluding the effect of the Piper write-down,
the ratio of earnings to fixed charges for 1993 would have been 4.45.
3
<PAGE> 5
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). The particular terms of the Offered Debt
Securities and the extent to which such general provisions may apply will be
described in a Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of the Company
and will constitute either senior debt securities or subordinated debt
securities. In the case of Debt Securities that will be senior debt securities
("Senior Debt Securities"), the Debt Securities will be issued under an
Indenture (the "Senior Indenture") to be entered into between the Company and
The First National Bank of Chicago, as trustee under the Senior Indenture. In
the case of Debt Securities that will be subordinated debt securities
("Subordinated Debt Securities"), the Debt Securities will be issued under an
Indenture (the "Subordinated Indenture") to be entered into between the Company
and The First National Bank of Chicago, as trustee under the Subordinated
Indenture. The Senior Indenture and the Subordinated Indenture are sometimes
hereinafter referred to herein individually as an "Indenture" and collectively
as the "Indentures." Copies of the forms of the Indentures have been filed as
exhibits to the Registration Statement. The First National Bank of Chicago, as
trustee under each of the Indentures (and any successor thereto under each
Indenture), is referred to herein as the "Trustee." The statements under this
caption relating to the Debt Securities and the Indentures are summaries only
and do not purport to be complete. Such summaries make use of terms defined in
the Indentures. Wherever such terms are used herein or particular provisions of
an Indenture are referred to, such terms or provisions, as the case may be, are
incorporated by reference as part of the statements made herein, and such
statements are qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The italicized references below
apply to the article or section numbers in the Senior Indenture and Subordinated
Indenture, respectively, or to both Indentures if only one reference is
provided, unless otherwise indicated.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
The Indentures do not limit the aggregate principal amount of Debt
Securities which can be issued thereunder and provide that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance. The Debt
Securities may be issued at various times with different maturity dates and
different principal repayment provisions, may bear interest at different rates,
may be payable in currencies other than United States dollars, in composite
currencies or in amounts determined by reference to the price, rate or value of
one or more specified commodities, currencies or indices, and may otherwise
vary, all as provided in the Indentures. The Company has from time to time
entered into, and will in the future enter into, credit agreements to fund its
operations, herein referred to collectively as the "Credit Facility." Such
credit agreements may be secured by the assets of the Company, secured by the
assets of subsidiaries of the Company or guaranteed by subsidiaries of the
Company. To the extent that the Credit Facility is so secured or guaranteed, the
lenders under such Credit Facility may have priority over the holders of the
Debt Securities with respect to the assets of the Company or its subsidiaries
which secure such Credit Facility and may have priority over the holders of the
Debt Securities and the guarantees thereof.
General. Unless otherwise indicated in a Prospectus Supplement, the Debt
Securities will not benefit from any covenant or other provision that would
afford holders of such Debt Securities special protection in the event of a
highly leveraged transaction involving the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Debt Securities: (i) the title and aggregate principal
amount of the Offered Debt Securities; (ii) the date or dates on which the
Offered Debt Securities will mature; (iii) the rate or rates (which may be fixed
or variable) per annum, if any, at which the Offered Debt Securities will bear
interest or the method of determining such rate or rates; (iv) the date or dates
from which such interest, if any, will accrue and the date or dates at which
such interest, if any, will be payable; (v) the terms for redemption or early
4
<PAGE> 6
payment, if any, including any mandatory or optional sinking fund or analogous
provision; (vi) the terms for conversion or exchange, if any, of the Offered
Debt Securities; (vii) whether, and the extent to which, the Company's
obligations under the Offered Debt Securities will be guaranteed by any of the
Company's subsidiaries; (viii) whether such Offered Debt Securities will be
issued in fully registered form or in bearer form or any combination thereof;
(ix) whether such Offered Debt Securities will be issued in the form of one or
more global securities and whether such global securities are to be issuable in
temporary global form or permanent global form; (x) information with respect to
book-entry procedures, if any; (xi) the currency, currencies or currency unit or
units in which such Offered Debt Securities will be denominated and in which the
principal of, and premium and interest, if any, on such Offered Debt Securities
will be payable; (xii) whether, and the terms and conditions on which, the
Company or a holder may elect that, or the other circumstances under which,
payment of principal of, or premium or interest, if any, on such Offered Debt
Securities is to be made in a currency or currencies or currency unit or units
other than that in which such Offered Debt Securities are denominated; (xiii)
any index or formula to be used to determine the amount of payments of principal
of (and premium, if any) and interest on such Offered Debt Securities and any
commodities, currencies, currency units or indices, or value, rate or price,
relevant to such determination; and (xiv) any other specific terms of the
Offered Debt Securities. (Section 301) Reference is also made to the applicable
Prospectus Supplement for information with respect to (x) the classification of
the Offered Debt Securities as Senior Debt Securities or Subordinated Debt
Securities, (y) the price (expressed as a percentage of the aggregate principal
amount of the Offered Debt Securities) at which the Offered Debt Securities will
be issued, if other than 100 percent, and (z) any additional covenants that may
be included in the terms of the Offered Debt Securities.
No service charge will be made for any registration of transfer or exchange
of the 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)
The Company currently conducts all of its operations through subsidiaries,
and the holders of Debt Securities will generally have a junior position to any
claims of creditors and any preferred stockholders of the Company's
subsidiaries, except as applicable under the terms of any guarantee of any
Senior Debt Securities. Claims of creditors of such subsidiaries, including
trade creditors, secured creditors, taxing authorities and creditors holding
guarantees, and claims of holders of any preferred stock will generally have
priority as to the assets of such subsidiaries over the claims and equity
interests of the Company and, thereby, indirectly, the holders of indebtedness
of the Company, including the Debt Securities. To the extent the Offered Debt
Securities are Senior Debt Securities guaranteed by certain of the Company's
subsidiaries, such Senior Debt Securities will rank senior to or pari passu with
certain indebtedness of such subsidiary. See "-- Provisions Applicable Solely to
Senior Debt Securities."
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest or interest
at a rate which at the time of issuance is below market rates. Any material
United States federal income tax consequences and other special considerations
applicable thereto will be described in the Prospectus Supplement relating to
any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest, if any, on any of
the Offered Debt Securities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
Covenants. The Indentures require the Company to covenant, among other
things, with respect to each series of Debt Securities: (i) to duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
such series of Debt Securities; (ii) to maintain an office or agency in each
Place of Payment where Debt Securities may be presented or surrendered for
payment, transferred or exchanged and where notices to the Company may be
served; (iii) if the Company shall act as its own Paying Agent for any series of
Debt Securities, to segregate and hold in trust for the benefit of the Persons
entitled
5
<PAGE> 7
thereto a sum sufficient to pay the principal (and premium, if any) or interest,
if any, so becoming due; (iv) to deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement to the effect that the Company
has fulfilled all its obligations under the Indentures throughout such year; (v)
to preserve its corporate existence; (vi) to maintain its properties; and (vii)
to pay taxes and other claims, in each case, as required by the Indentures.
(Article Eleven; Article Ten)
Events of Default. Unless otherwise provided with respect to any series of
Debt Securities, the following are Events of Default under each Indenture with
respect to the Debt Securities of such series issued under the Indenture: (a)
failure to pay principal of (or premium, if any, on) any Debt Security of such
series when due; (b) failure to pay any interest on any Debt Security of such
series when due, continued for 30 days; (c) failure to deposit any mandatory
sinking fund payment, when due, in respect of the Debt Securities of such
series; (d) failure to perform any other covenant of the Company in the
applicable Indenture (other than a covenant included in the applicable Indenture
for the benefit of a series of Debt Securities other than such series),
continued for 60 days after written notice as provided in the applicable
Indenture; (e) certain events of bankruptcy, insolvency or reorganization; and
(f) any other Event of Default as may be established with respect to Debt
Securities of such series (including, without limitation, any Event of Default
arising out of a default which results in the acceleration of certain
Indebtedness or a default in the payment of any amounts due on certain
Indebtedness). (Sections 301 and 601; Sections 301 and 501) If an Event of
Default with respect to any outstanding series of Debt Securities occurs and is
continuing, either the Trustee or the holders of at least 25% in principal
amount of the outstanding Debt Securities of such series (subject to the
following sentence, in the case of an Event of Default described in clause (a),
(b), (c) or (f) above) or at least 25% in principal amount of all outstanding
Debt Securities under the Indenture (subject to the following sentence, in the
case of other Events of Default) may declare the principal amount of all the
Debt Securities of the applicable series (or of all outstanding Debt Securities
under the applicable Indenture, as the case may be) to be due and payable
immediately. If an Event of Default described in clause (e) shall occur, the
principal amount of the Debt Securities of all series ipso facto shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any holder. At any time after a declaration of
acceleration has been made, but before a judgment has been obtained, the holders
of a majority in principal amount of the outstanding Debt Securities of such
series (or all outstanding Debt Securities under the applicable Indenture, as
the case may be) may, under certain circumstances, rescind and annul such
acceleration. (Section 602; Section 502) Depending on the terms of other
Indebtedness of the Company outstanding from time to time, an Event of Default
under an Indenture may give rise to cross defaults on such other Indebtedness of
the Company.
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, give to the
holders of the Debt Securities of such series notice of all uncured and unwaived
defaults known to it; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or any interest on, or
any sinking fund installment with respect to, any Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
holders of the Debt Securities of such series; and provided, further, that such
notice shall not be given until at least 30 days after the occurrence of a
default in the performance, or breach, of any covenant or warranty of the
Company under such Indenture other than for the payment of the principal of (or
premium, if any) or any interest on, or any sinking fund installment with
respect to, any Debt Securities of such series. For the purpose of this
provision, "default" with respect to Debt Securities of any series means any
event which is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Debt Securities of such series. (Section
702; Section 602)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) have the right, subject to certain limitations,
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 Debt Securities of such series (or of all
outstanding Debt Securities under the applicable Indenture).
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(Section 612; Section 512) Each Indenture provides that in case an Event of
Default shall occur and be continuing with respect to the Debt Securities of any
series, the Trustee shall exercise such of its rights and powers under the
applicable Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs. (Section 701; Section 601) Subject to such provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under either Indenture at the request of any of the holders of the Debt
Securities unless they shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request. (Section 703; Section 603)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) may on behalf of the holders of all Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture) waive any past default under the Indenture, except a
default in the payment of the principal of (or premium, if any) or interest on
any Debt Security or in respect of a provision which under the applicable
Indenture cannot be modified or amended without the consent of the holder of
each outstanding Debt Security affected. (Section 613; Section 513) The holders
of a majority in principal amount of the outstanding Debt Securities affected
thereby may on behalf of the holders of all such Debt Securities waive
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 1110; Section 1008)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance. (Section 1109; Section
1007)
Modification. Modifications and amendments of each Indenture may be made by
the Company and the Trustee with the consent of the holders of a majority in
principal amount of the outstanding Debt Securities under the Indenture 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 date of the principal of, or any installment of
interest on, any Debt Security, (b) reduce the principal amount of, or the
premium (if any) or interest on, any Debt Security, (c) change the Place of
Payment or currency, currencies, or currency unit or units of payment of
principal of, or premium (if any) or interest on, any Debt Security, (d) impair
the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security or (e) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose holders is required for
modification or amendment of the Indentures or for waiver of compliance with
certain provisions of the Indentures or for waiver of certain defaults. (Section
1002; Section 902)
Each Indenture provides that the Company and the Trustee may, without the
consent of any holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of adding to the Company's covenants,
securing the Debt Securities, adding additional Events of Default, establishing
the form or terms of Debt Securities or curing ambiguities or inconsistencies in
the applicable Indenture, provided such action to cure ambiguities or
inconsistencies shall not adversely affect the interests of the holders of the
Debt Securities in any material respect. (Section 1001; Section 901)
Consolidation, Merger and Sale of Assets. The Company, without the consent
of any holders of outstanding Debt Securities, may consolidate with or merge
into, 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 which acquires or leases the assets of the Company
substantially as an entirety is a corporation, partnership or trust organized
under the laws of any United States jurisdiction and assumes by supplemental
indenture the Company's obligations on the Debt Securities and under the
Indenture, 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 occurred and be continuing, and that certain other
conditions are met. Upon compliance with these provisions by a successor Person,
the
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Company will (except in the case of a lease) be relieved of its obligations
under the Indenture and the Debt Securities. (Article Nine; Article Eight)
Discharge and Defeasance. The Company may terminate its obligations under
each Indenture with respect to Debt Securities of any series, other than its
obligation to pay the principal of (and premium, if any) and interest on such
Debt Securities and certain other obligations, if it (i) irrevocably deposits or
causes to be irrevocably deposited with the Trustee as trust funds money or U.S.
Government Obligations maturing as to principal and interest sufficient to pay
the principal of, any interest on, and any mandatory sinking funds in respect
of, all outstanding Debt Securities of such series on the stated maturity of
such payments or on any redemption date, (ii) has delivered to the Trustee an
opinion of counsel to the effect that the holders of Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
time as would have been the case if such discharge had not occurred, and (iii)
complies with any additional conditions specified to be applicable with respect
to the covenant defeasance of Debt Securities of such series, and no default or
Event of Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit or, insofar as they
relate to certain events of bankruptcy or insolvency, at any time in the period
ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period). (Section 501; Section 401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company (i)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above and complies with the other provisions
described above (except that the opinion referred to in clause (ii) above must
be based on a ruling by the Internal Revenue Service or other change under
applicable United States federal income tax law), (ii) makes a request to the
Trustee to be discharged from its obligations on the Debt Securities of such
series and (iii) complies with any additional conditions specified to be
applicable with respect to legal defeasance of Debt Securities of such series,
then the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Debt Securities of such series, and the
obligations of the Company under the applicable Indenture and the Debt
Securities of such series to pay the principal of (and premium, if any) and
interest on the Debt Securities of such series shall cease, terminate and be
completely discharged and the holders thereof shall thereafter be entitled only
to payment out of the money or U.S. Government Obligations deposited with the
Trustee as aforesaid, unless the Company's obligations are revived and
reinstated because the Trustee is unable to apply such trust fund by reason of
any legal proceeding, order or judgment. (Sections 503 and 504; Sections 403 and
404)
Form, Exchange, Registration and Transfer. Debt Securities are issuable in
definitive form as Registered Debt Securities, as Bearer Debt Securities or
both. Unless otherwise indicated in an applicable Prospectus Supplement, Bearer
Debt Securities will have interest coupons attached. Debt Securities are also
issuable in temporary or permanent global form. (Section 301)
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, with
respect to any series of Bearer Debt Securities, at the option of the holder,
subject to the terms of the applicable Indenture, Bearer Debt Securities (with
all unmatured coupons, except as provided below, and all matured coupons in
default) of such series will be exchangeable into Registered Securities of the
same series of any authorized denominations and of a like aggregate principal
amount and tenor. Bearer Debt Securities surrendered in exchange for Registered
Debt Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest accrued as of such
date will not be payable in respect of the Registered Debt Security issued in
exchange for such Bearer Debt Security, but will be payable only to the holder
of such coupon when due in accordance with the terms of the applicable
Indenture. (Section 305)
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In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the United
States (as defined under "-- Limitations on Issuance of Bearer Debt
Securities"), and a Bearer Debt Security may be delivered outside the United
States in definitive form in connection with the original issuance only if prior
to delivery the Person entitled to receive such Bearer Debt Security furnishes
written certification, in the form required by the applicable Indenture, to the
effect that such Bearer Debt Security is owned by: (a) a Person (purchasing for
its own account) who is not a United States Person (as defined under
"-- Limitations on Issuance of Bearer Debt Securities"); (b) a United States
Person who (i) is a foreign branch of a United States financial institution
purchasing for its own account or for resale or (ii) acquired such Bearer Debt
Security through the foreign branch of a United States financial institution and
who for purposes of the certification holds such Bearer Debt Security through
such financial institution on the date of certification and, in either case,
such United States financial institution certifies to the Company or the
distributor selling the Bearer Debt Security within a reasonable time stating
that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations thereunder, or (c) a United States or foreign financial
institution for purposes of resale within the "restricted period" as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial
institution described in clause (c) of the preceding sentence (whether or not
also described in clauses (a) and (b)) must certify that it has not acquired the
Bearer Debt Security for the purpose of resale, directly or indirectly, to a
United States Person or to a person within the United States or its possessions.
In the case of a Bearer Debt Security in permanent global form, such
certification must be given in connection with notation of a beneficial owner's
interest therein in connection with the original issuance of such Debt Security
or upon exchange of a portion of a temporary global Security. (Section 303) See
"-- Limitations on Issuance of Bearer Debt Securities."
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office of the
Security Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without a service charge and
upon payment of any taxes and other governmental charges as described in the
applicable Indenture. Such transfer or exchange will be effected upon the
Security Registrar or such transfer agent, as the case may be, being satisfied
with the document of title and identity of the Person making the request. The
Company has appointed the Trustee as Security Registrar. (Section 305) If a
Prospectus Supplement refers to any transfer agents (in addition to the Security
Registrar) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
solely as Registered Debt Securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if Debt Securities
of a series are issuable as Bearer Debt Securities, the Company will be required
to maintain (in addition to the Security Registrar) a transfer agent in a Place
of Payment located outside the United States for Registered Securities of such
series. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities. (Section 1102; Section 1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Debt Securities of that series for redemption and ending on the
close of business on, (A) if Debt Securities of the series are issuable only as
Registered Debt Securities, the day of mailing of the relevant notice of
redemption and, (B) if Debt Securities of the series are issuable as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption, except that, if Securities of the series are also issuable as
Registered Debt Securities and there is no publication, the day of mailing of
the relevant notice of redemption; (ii) register the transfer of or exchange any
Registered Debt Security, or portion thereof, called for redemption, except the
unre-
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<PAGE> 11
deemed portion of any Registered Debt Security being redeemed in part; or (iii)
exchange any Bearer Debt Security called for redemption, except to exchange such
Bearer Debt Security for a Registered Debt Security of that series and like
tenor which is simultaneously surrendered for redemption. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Bearer Debt Securities will be payable, subject to any applicable laws and
regulations in the designated currency or currency unit, at the offices of such
Paying Agents outside the United States as the Company may designate from time
to time, at the option of the holder, by check or by transfer to an account
maintained by the payee until a bank located outside the United States;
provided, however, that the written certification described above under
"-- Form, Exchange, Registration and Transfer" has been delivered prior to the
first actual payment of interest. (Section 307) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest on Bearer Debt Securities
on any Interest Payment Date will be made only against surrender to the Paying
Agent of the coupon relating to such Interest Payment Date. (Section 1101;
Section 1001) No payment with respect to any Bearer Debt Security will be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to any account maintained
with a bank located in the United States, nor shall any payments be made in
respect of Bearer Debt Securities upon presentation to the Company or its
designated Paying Agents within the United States. Notwithstanding the
foregoing, payments of principal of and any premium and interest on Bearer Debt
Securities denominated and payable in U.S. dollars will be made at the office of
the Company's Paying Agent in the Borough of Manhattan, The City of New York, if
(but only if) payment of the full amount thereof in United States dollars at all
offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 1102;
Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities will
be made in the designated currency or currency unit at the office of such Paying
Agent or Paying Agents as the Company may designate from time to time, except
that at the option of the Company payment of any interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on Registered Debt
Securities will be made to the Person in whose name such Registered Debt
Security is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York will be designated as a Paying Agent for the Company for payments with
respect to Debt Securities which are issuable solely as Registered Debt
Securities, and the Company will maintain a Paying Agent outside the United
States for payments with respect to Debt Securities (subject to limitations
described above in the case of Bearer Debt Securities) which are issuable solely
as Bearer Debt Securities, or as both Registered Debt Securities and Bearer Debt
Securities. Any Paying Agents outside the United States and any other Paying
Agents in the United States initially designated by the Company for the Debt
Securities will be named in an applicable Prospectus Supplement. The Company may
at any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that, if Debt Securities of a series are issuable solely as
Registered Debt Securities, the Company will be required to maintain a Paying
Agent in each Place of Payment for such series and, if Debt Securities of a
series are issuable as Bearer Debt Securities, the Company will be required to
maintain (i) a Paying Agent in the Borough of Manhattan, The City of New York
for principal payments with respect to any Registered Debt Securities of the
series (and for payments with respect to Bearer Debt Securities of the series in
the circumstances described above, but not otherwise), and (ii) a Paying Agent
in a Place of Payment located outside the United States where securities of such
series and any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on any
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in a city located outside
the United States, as may be required, for the Debt Securities of such series.
(Section 1102; Section 1002)
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All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (Section 1103; Section
1003)
Temporary Global Securities. If so specified in an applicable Prospectus
Supplement, all or any portion of the Debt Securities of a series which are
issuable as Bearer Debt Securities will initially be represented by one or more
temporary global Debt Securities, without interest coupons, to be deposited with
a common depositary in London for the Euroclear System ("Euroclear") and CEDEL
S.A ("CEDEL") for credit to the designated accounts. On and after the date
determined as provided in any such temporary global Debt Security and described
in an applicable Prospectus Supplement, each such temporary global Debt Security
will be exchangeable for definitive Bearer Debt Securities, definitive
Registered Debt Securities or all or a portion of a permanent global security,
or any combination thereof, as specified in an applicable Prospectus Supplement,
but, unless otherwise specified in an applicable Prospectus Supplement only upon
written certification in the form and to the effect described under "-- Form,
Exchange, Registration and Transfer." No Bearer Debt Security delivered in
exchange for a portion of a temporary global Debt Security will be mailed or
otherwise delivered to any location in the United States in connection with such
exchange. (Section 304)
Unless otherwise specified in an applicable Prospectus Supplement, interest
in respect of any portion of a temporary global Debt Security payable in respect
of an Interest Payment Date occurring prior to the issuance of definitive Debt
Securities or a permanent global Debt Security will be paid to each of Euroclear
and CEDEL with respect to the portion of the temporary global Debt Security held
for its account. Each of Euroclear and CEDEL will undertake in such
circumstances to credit such interest received by it in respect of a temporary
global Debt Security to the respective accounts for which it holds such
temporary global Debt Security only upon receipt in each case of written
certification in the form and to the effect described above under "-- Form,
Exchange, Registration and Transfer" as of the relevant Interest Payment Date
regarding the portion of such temporary global Debt Security on which interest
is to be so credited. (Section 304)
Permanent Global Securities. If any Debt Securities of a series are
issuable in permanent global form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interests
in any such permanent global Debt Securities may exchange such interest for Debt
Securities of such series and of like tenor and principal amount in any
authorized form and denomination. No Bearer Debt Security delivered in exchange
for a portion of a permanent global Debt Security shall be mailed or otherwise
delivered to any location in the United States in connection with such exchange.
(Section 305) A Person having a beneficial interest in a permanent global Debt
Security will, except with respect to payment of principal of and any premium
and interest on such permanent global Debt Security, be treated as a holder of
such principal amount of Outstanding Debt Securities represented by such
permanent global Debt Security as shall be specified in a written statement of
the holder of such permanent global Debt Security or, in the case of a permanent
global Debt Security in bearer form, of the operator of Euroclear or CEDEL which
is provided to the Trustee by such Person. Principal of and any premium and
interest on a permanent global Debt Security will be payable in the manner
described in the applicable Prospectus Supplement. (Section 203)
Book-Entry Debt Securities. The Debt Securities of a series may be issued
in whole or in part, in the form of one or more global Debt Securities that
would be deposited with a depositary or a nominee identified in the applicable
Prospectus Supplement. The specific terms of any depositary arrangement with
respect to any portion of a series of Debt Securities and the rights of, and
limitations on, owners of beneficial interests in any such global Debt Security
representing all or a portion of a series of Debt Securities will be described
in the applicable Prospectus Supplement. (Section 204)
Limitations on Issuance of Bearer Debt Securities. In compliance with
United States federal tax laws and regulations, Bearer Debt Securities
(including securities in permanent global form that are either
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Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be
offered or sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40
days after the closing date, and with respect to unsold allotments, until sold)
within the United States or to United States Persons (each as defined below)
other than to an office located outside the United States of a United States
financial institution (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury Regulations), purchasing for its own account or for resale or
for the account of certain customers, that provides a certificate stating that
it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Code and the United States Treasury Regulations thereunder, or to certain
other Persons described in Section 1.163-5(c)(2)(i)(D)(l)(iii)(B) of the United
States Treasury Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period within the
United States. Any underwriters, agents and dealers participating in the
offering of Bearer Debt Securities must covenant that they will not offer or
sell during the restricted period any Bearer Debt Securities within the United
States or to United States Persons (other than the persons described above) or
deliver in connection with the sale of Bearer Debt Securities during the
restricted period any Bearer Debt Securities within the United States and that
they have in effect procedures reasonably designed to ensure that their
employees and agents who are directly engaged in selling the Bearer Debt
Securities are aware of the restrictions described above. No Bearer Debt
Security (other than a temporary global Bearer Debt Security) will be delivered
in connection with its original issuance nor will interest be paid on any Bearer
Debt Security until receipt by the Company of the written certification
described above under "-- Form, Exchange, Registration and Transfer." Each
Bearer Debt Security, other than a temporary global Bearer Debt Security, will
bear a legend to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
As used herein "United States Person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source, and "United States" means the United States of America (including the
states and the District of Columbia) and its possessions.
Meetings. The Indentures contain provisions for convening meetings of the
holders of Debt Securities of a series. A meeting may be called at any time by
the Trustee, and also, upon request, by the Company or the holders of at least
25% in principal amount of the Outstanding Debt Securities of such series, in
any such case upon notice given as described under "-- Notices" below. Except
for any consent that must be given by the holder of each Outstanding Debt
Security affected thereby, as described under "-- Modification" above, any
resolution presented at a meeting or adjourned meeting at which a quorum is
present may be adopted by the affirmative vote of the holders of a majority in
principal amount of the Outstanding Debt Securities of that series; provided,
however, that except for any consent that must be given by the holder of each
Outstanding Debt Security affected thereby, as described under "-- Modification"
above, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the holders of a specified percentage, which is less than a majority in
principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or adjourned meeting duly reconvened at which a quorum is present
by the affirmative vote of the holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series. Subject to the proviso
set forth above, any resolution passed or action taken at any meeting of holders
of Debt Securities of any series duly held in accordance with the Indenture will
be binding on all holders of Debt Securities of that series and any related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be Persons holding or representing a majority in
principal amount of the Outstanding Debt Securities of a series. (Article
Fourteen)
Notices. Except as otherwise provided in the Indentures, notices to holders
of Bearer Debt Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in
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<PAGE> 14
such other city or cities as may be specified in such Debt Securities. Notices
to holders of Registered Debt Securities will be given by mail to the addresses
of such holders as they appear in the Security Register. (Section 107)
The Trustee. The Indentures provide that the Trustee shall authenticate and
deliver Debt Securities of a particular series in accordance with a Company
Order. Each Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases and to realize certain property received with respect to any such
claims, as security or otherwise. (Section 713; Section 613) The Trustee is one
of the lenders under the Company's Credit Facility. The Trustee is permitted to
engage in other transactions, except that, if it acquires any conflicting
interest and there is a default under the Debt Securities, it must eliminate
such conflict or resign. (Section 708; Section 608)
Governing Law. The Indentures are, and the Debt Securities will be,
governed by and construed in accordance with the laws of the State of New York,
but without giving effect to principles of conflicts of law.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture and will
rank pari passu in right of payment with the Company's obligations under its
Credit Facility, its 8.25% Senior Notes and all other unsecured and
unsubordinated debt of the Company, and will be senior in right of payment to
all existing and future debt of the Company that is, by its terms, expressly
subordinated to the Senior Debt Securities. The guarantees, if any, of the
Senior Debt Securities by certain subsidiaries of the Company will rank pari
passu with any then existing obligations of any such subsidiaries under the
Credit Facility, the 8.25% Senior Notes and all other unsecured and
unsubordinated debt of such subsidiary, and will be senior in right of payment
to all existing and future debt of such subsidiary that is, by its terms,
expressly subordinated to the Senior Debt Securities.
Certain Subsidiaries of the Company, each of which may also be a guarantor
of the Company's obligations under the Credit Facility (collectively, the
"Guarantors"), may unconditionally guarantee (the "Guarantees") on a joint and
several basis the Company's obligations to pay principal, premium, if any, and
interest with respect to Senior Debt Securities of any series (the "Guaranteed
Securities"). Each of the Guarantees will be an unsecured obligation of the
Guarantor providing such Guarantee. Any Guarantee of a Senior Debt Security will
rank pari passu with the guarantee provided by such Guarantor under the Credit
Facility and the 8.25% Senior Notes and with all existing and future unsecured
indebtedness of such Guarantor that is not, by its terms, expressly subordinated
in right of payment to such Guarantee.
Under the terms of the Indenture, a Guarantor may be released from its
Guarantee if such Guarantor is not a guarantor of any Funded Indebtedness of the
Company other than the Guaranteed Securities, provided that no default or Event
of Default under the Indenture has occurred and is continuing. The Indenture
will also provide that if any Subsidiary of the Company guarantees any Funded
Indebtedness of the Company other than the Guaranteed Securities at any time
subsequent to the date on which the Guaranteed Securities are originally issued
(including, without limitation, following any release of such Subsidiary from
its Guarantee as described above), then the Company will cause the Guaranteed
Securities to be equally and ratably guaranteed by such Subsidiary.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the obligations of such Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal,
state or foreign law. Each Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
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Although holders of the Guaranteed Securities will be direct creditors of
the Guarantors thereof by virtue of the Guarantees, existing or future creditors
of the Guarantors could avoid or subordinate Guarantees, in whole or in part,
under fraudulent conveyance laws to the extent they were successful in
establishing that (i) a Guarantee was incurred with intent to hinder, delay or
defraud any present or future creditor or contemplated insolvency with a design
to prefer one or more creditors to the exclusion in whole or in part of others
or (ii) any of the Guarantors did not receive fair consideration or reasonably
equivalent value for issuing its Guarantee and that it (w) was insolvent at the
time of such issuance, or (x) was rendered insolvent by reason of such issuance,
or (y) was engaged in a business or transaction for which its assets constituted
unreasonably small capital to carry on its business, or (z) intended to incur,
or believed that it would incur, debts beyond its ability to pay such debts as
they matured. Under the circumstances referred to in clause (ii), but not clause
(i), above, the provision of the Indenture described in the previous paragraph
generally would limit the obligations of each Guarantor to the maximum amount
that would not constitute a fraudulent conveyance or transfer under applicable
law. To the extent any Guarantee was avoided as a fraudulent conveyance or held
unenforceable for any other reason (or limited pursuant to such provision) the
holders of the Guaranteed Securities would cease to have any claim (or, as
applicable, have only a limited claim) in respect of a Guarantor, and would be
solely creditors of the Company or any Guarantor whose Guarantee was not avoided
or held unenforceable (or to the extent not so limited). In such event (and to
the extent of any such limitation), the claims of the holders of the Guaranteed
Securities would be subject to the prior payment of all liabilities and
preferred stock claims of the Subsidiaries who were not valid Guarantors.
Covenant Providing for Limitation on Liens. Nothing in the Senior Indenture
or the Senior Debt Securities will in any way restrict or prevent the Company or
any Restricted Subsidiary from issuing, assuming, guaranteeing or otherwise
incurring any Indebtedness, provided, however, the Senior Indenture will provide
that the Company will not, and will not permit any Restricted Subsidiary to,
issue, assume or guarantee any Indebtedness for borrowed money secured by any
Lien on any property or asset now owned or hereafter acquired by the Company or
such Restricted Subsidiary without making effective provision whereby any and
all Senior Debt Securities then or thereafter outstanding will be secured by a
Lien equally and ratably with any and all other obligations thereby secured for
so long as any such obligations shall be so secured.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary
may, without so securing the Senior Debt Securities, issue, assume or guarantee
Indebtedness secured by the following Liens:
(a) Liens existing on the date on which the Senior Debt Securities are
originally issued or provided for under the terms of agreements existing on
such date;
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property, (ii) all or any
portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used or
to be used in connection with such property or (iii) Indebtedness incurred
by the Company or any Restricted Subsidiary to provide funds for the
activities set forth in clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on the property of any Person existing at the time such
Person becomes a Subsidiary of the Company and not incurred as a result of
(or in connection with or in anticipation of) such Person becoming a
Subsidiary of the Company, provided that such Liens do not extend to or
cover any property or assets of the Company or any of its Subsidiaries
other than the property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
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<PAGE> 16
(f) any Lien on any asset securing Non-Recourse Indebtedness of the
Company or any Restricted Subsidiary or on any asset of Union Texas East
Kalimantan Limited securing Joint Venture Indebtedness;
(g) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted
under clauses (a) through (f) above, provided that such Lien extends to or
covers only the property that is subject to the Lien being extended,
renewed or replaced;
(h) certain Liens arising in the ordinary course of business of the
Company and the Restricted Subsidiaries; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding
in respect of all Sale/Leaseback Transactions entered into pursuant to
clause (a) of the covenant described under "Limitation on Sale/Leaseback
Transactions" below (exclusive of any such Sale/Leaseback Transactions
otherwise permitted under clauses (a) through (h) above), does not at the
time such Indebtedness is incurred exceed 10% of the Consolidated Net Worth
of the Company (as shown in the most recent audited consolidated balance
sheet of the Company and its Subsidiaries).
The following types of transactions will not be prohibited or otherwise
limited by the foregoing covenant: (i) the sale, granting of Liens with respect
to, or other transfer of, crude oil, natural gas or other petroleum hydrocarbons
in place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons; (ii) the sale or
other transfer of any other interest in property of the character commonly
referred to as a production payment, overriding royalty, forward sale or similar
interest; and (iii) the granting of Liens required by any contract or statute in
order to permit the Company or any Restricted Subsidiary to perform any contract
or subcontract made by it with or at the request of the United States or any
State thereof or of any foreign government or any department, agency,
organization or instrumentality thereof, or to secure partial, progress, advance
or other payments to the Company or any Restricted Subsidiary by such
governmental unit pursuant to the provisions of any contract or statute.
(Section 1107 of the Senior Indenture)
Covenant Providing for Limitation on Sale/Leaseback Transactions. The
Senior Indenture will provide that the Company will not, and will not permit any
Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with any
Person (other than the Company or a Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled to
incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction, secured by a
Lien on the property subject to such Sale/Leaseback Transaction pursuant to
the covenant described under "Limitation on Liens" above without equally
and ratably securing the Senior Debt Securities pursuant to such covenant;
(b) after the date on which the Senior Debt Securities are originally
issued and within a period commencing six months prior to the consummation
of such Sale/Leaseback Transaction and ending six months after the
consummation thereof, the Company or such Restricted Subsidiary shall have
expended for property used or to be used in the ordinary course of business
of the Company and the Restricted Subsidiaries (including amounts expended
for the exploration, drilling or development thereof, and for additions,
alterations, repairs and improvements thereto) an amount equal to all or a
portion of the net proceeds of such Sale/Leaseback Transaction and the
Company shall have elected to designate such amount as a credit against
such Sale/Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (c) below); or
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<PAGE> 17
(c) the Company, during the 12-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of any Pari Passu Indebtedness an amount equal to
the greater of the net proceeds of the sale or transfer of the property
leased in such Sale/Leaseback Transaction and the fair value, as determined
by the Board of Directors of the Company, of such property at the time of
entering into such Sale/Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the
Company as set forth in clause (b) above), less an amount equal to the
principal amount of Pari Passu Indebtedness voluntarily defeased or retired
by the Company within such 12-month period and not designated as a credit
against any other Sale/Leaseback Transaction entered into by the Company or
any Restricted Subsidiary during such period. (Section 1106 of the Senior
Indenture)
The term "Adjusted Net Assets" of a Guarantor is defined in the Senior
Indenture as at any date, the lesser of (x) the amount by which the fair value
of the property of such Guarantor at such date exceeds the total amount of
liabilities, including, without limitation, the probable amount of contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date) of such Guarantor at such date, but excluding
liabilities under the Guarantee of such Guarantor, and (y) the amount by which
the present fair saleable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of any obligations
of such Subsidiary under the Guarantee of such Guarantor), excluding debt in
respect of the Guarantee of such Guarantor, as they become absolute and matured.
The term "Attributable Indebtedness," when used with respect to any
Sale/Leaseback Transaction, is defined in the Senior Indenture as at the time of
determination, the present value (discounted at a rate equivalent to the
Company's then current weighted average cost of funds for borrowed money as at
the time of determination, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
The term "Capitalized Lease Obligation" of any Person is defined in the
Senior Indenture as any obligation of such Person to pay rent or other amounts
under a lease of property, real or personal, that is required to be capitalized
for financial reporting purposes in accordance with generally accepted
accounting principles; and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with generally accepted
accounting principles.
The term "Consolidated Net Worth" of the Company is defined in the Senior
Indenture as the consolidated stockholder's equity of the Company and its
Subsidiaries, as determined in accordance with generally accepted accounting
principles.
The term "Funded Indebtedness" is defined in the Senior Indenture as all
Indebtedness (including Indebtedness incurred under any revolving credit, letter
of credit or working capital facility) that matures by its terms, or that is
renewable at the option of any obligor thereon to a date, more than one year
after the date on which such Indebtedness is originally incurred.
The term "Hedging Obligations" of any Person is defined in the Senior
Indenture as the obligations of such Person pursuant to any interest rate swap
agreement, foreign currency exchange agreement, interest rate collar agreement,
option or future contract or other similar agreement or arrangement relating to
interest rates or foreign exchange rates.
The term "Indebtedness" of any Person at any date is defined in the Senior
Indenture as, without duplication, (i) all indebtedness of such Person for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with
16
<PAGE> 18
respect thereto), other than standby letters of credit incurred by such Person
in the ordinary course of business, (iv) all obligations of such Person to pay
the deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of business, (v)
all Capitalized Lease Obligations of such Person, (vi) all Indebtedness of
others secured by a lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person, (vii) all Indebtedness of others
guaranteed by such Person to the extent of such guarantee and (viii) all Hedging
Obligations of such Person.
The term "Joint Venture Indebtedness" is defined in the Senior Indenture as
obligations secured by a Lien on the interests of the Company or a Restricted
Subsidiary, as the case may be, arising under production sharing contracts or
related supply contracts, if such Lien covers ratably the interests of
Pertamina, the Indonesian national oil company, and all production sharing
contractors thereunder.
The term "Lien" is defined in the Senior Indenture as, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset (including, without limitation, any production
payment, advance payment or similar arrangement with respect to minerals in
place), whether or not filed, recorded or otherwise perfected under applicable
law. For the purposes of this Indenture, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
Capitalized Lease Obligation (other than any Capitalized Lease Obligation
relating to any building, structure, equipment or other property used or to be
used in the ordinary course of business of the Company and the Restricted
Subsidiaries) or other title retention agreement relating to such asset.
The term "Non-Recourse Indebtedness" is defined in the Senior Indenture as,
at any date, the aggregate amount at such date of Indebtedness of the Company or
a Subsidiary in respect of which the recourse of the holder of such
Indebtedness, whether direct or indirect and whether contingent or otherwise, is
effectively limited to specified assets.
The term "Pari Passu Indebtedness" is defined in the Senior Indenture as
any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall be
subordinated in right of payment to the Securities.
The term "Restricted Subsidiary" is defined in the Senior Indenture as (i)
each Subsidiary of the Company executing this Indenture, (ii) Union Texas
Petroleum Limited so long as it is a Subsidiary of the Company and (iii) any
Subsidiary of the Company that is a successor corporation of any Subsidiary of
the Company referred to in clauses (i) and (ii). The status of any Subsidiary of
the Company as a Restricted Subsidiary shall continue, irrespective of any
release of any Guarantee provided under the Senior Indenture, so long as it is a
Subsidiary of the Company.
The term "Sale/Leaseback Transaction" is defined in the Senior Indenture as
any arrangement with any Person providing for the leasing by the Company or any
Restricted Subsidiary, for a period of more than three years, of any real or
tangible personal property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person in
contemplation of such leasing.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
General. Subordinated Debt Securities will be issued under the Subordinated
Indenture and will rank pari passu with certain other subordinated debt of the
Company that may be outstanding from time to time and will rank junior to all
Senior Indebtedness (including any Senior Debt Securities) of the Company that
may be outstanding from time to time.
Subordination. The payment of the principal of (and premium, if any) and
interest on the Subordinated Debt Securities is expressly subordinated, to the
extent and in the manner set forth in the
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<PAGE> 19
Subordinated Indenture, in right of payment to the prior payment in full of all
Senior Indebtedness of the Company. (Section 1301 of the Subordinated Indenture)
In the event of any dissolution or winding up, or total or partial
liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, the holders of
Senior Indebtedness will 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 Debt Securities are entitled to receive any payment
on account of principal (or premium, if any) or interest on the Subordinated
Debt Securities. (Section 1302 of the Subordinated Indenture)
Unless otherwise indicated in the applicable Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made if, at the
time of such payment, there exists a default in payment of all or any portion of
any Senior Indebtedness, and such default shall not have been cured or waived in
writing or the benefits of such subordination in the Subordinated Indenture
shall not have been waived in writing by or on behalf of the holders of such
Senior Indebtedness. In addition, unless otherwise provided in the applicable
Prospectus Supplement, during the continuance of any event of default (other
than a default referred to in the immediately preceding sentence) with respect
to any Senior Indebtedness permitting the holders to accelerate the maturity
thereof and upon written notice thereof given to the Trustee, with a copy to the
Company (the delivery of which shall not affect the validity of the notice to
the Trustee), by any holder of Senior Indebtedness or its representative, then,
unless and until such an event of default shall have been cured or waived or
shall have ceased to exist, no payment shall be made by the Company with respect
to the principal of or interest on the Subordinated Debt Securities or to
acquire any of the Subordinated Debt Securities or on account of the redemption
provisions of the Subordinated Debt Securities. Only one such payment blockage
period may be commenced within any consecutive 365-day period with respect to
the Subordinated Debt Securities. No event of default which existed or was
continuing on the date of the commencement of any 180-day payment blockage
period with respect to the Senior Indebtedness initiating such payment blockage
period shall be, or be made, the basis for the commencement of a second payment
blockage period by a holder or representative of such Senior Indebtedness,
whether or not within a period of 365 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (and, in the case of any such waiver, no payment shall be made
by the Company to the holders of Senior Indebtedness in connection with such
waiver other than amounts due pursuant to the terms of the Senior Indebtedness
as in effect at the time of such default). (Section 1302 of the Subordinated
Indenture)
The term "Indebtedness", as applied to any Person, is defined in the
Subordinated Indenture as all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by such Person for the
repayment of money borrowed, and obligations, computed in accordance with
generally accepted accounting principles, as lessee under leases that should be,
in accordance with generally accepted accounting principles, recorded as capital
leases. All Indebtedness of others guaranteed as to payment of principal by such
Person or in effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall for all purposes hereof be deemed to be
Indebtedness of such Person.
The term "Senior Indebtedness" is defined in the Subordinated Indenture as
Indebtedness, either outstanding as of the date of the Subordinated Indenture or
issued subsequent to the date of the Subordinated Indenture, unless such
Indebtedness is either subordinated by its terms in right of payment to any
other Indebtedness of the Company or pari passu with subordinated Indebtedness
of any series, provided that the term "Senior Indebtedness" shall not include
(i) Indebtedness of the Company to any Subsidiary for money borrowed or advanced
from such Subsidiary or (ii) amounts owed (except to banks and other financial
institutions) for goods, materials or services purchased in the ordinary course
of business.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness outstanding as
of a recent date will be set forth in the applicable
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<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of all expenses in connection
with the distribution of the securities registered hereby, all of which will be
paid by the Company, is as follows:
<TABLE>
<S> <C>
Registration fee................................................. $ 68,966
Blue Sky fees and expenses....................................... 15,000
Printing and engraving expenses.................................. 80,000
Legal fees and expenses.......................................... 100,000
Accounting fees and expenses..................................... 100,000
Rating agencies' fees and expenses............................... 70,000
Trustee's and registrar's fees................................... 4,000
Miscellaneous fees and expenses.................................. 12,034
---------
Total..................................................... $ 450,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, inter alia, empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
any such threatened, pending or completed action or suit if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act.
The Bylaws for each Registrant other than Union Texas East Kalimantan
Limited provide for indemnification of the directors and officers of the
Registrant to the full extent permitted by law, as now in effect or later
amended. In addition, the Bylaws provide for indemnification against expenses
incurred by a director or officer to be paid by the Registrant at reasonable
intervals in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it shall be ultimately determined that he is not entitled
to be indemnified by the Registrant. The Bylaws further provide for a
contractual cause of action on the part of directors and
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officers of each Registrant for indemnification claims which have not been paid
by the Registrant. The Articles of Association of Union Texas East Kalimantan
Limited provide for indemnification of directors and officers except for wilful
neglect or default.
The Company also has provided liability insurance for each director and
officer for certain losses arising from claims or charges against them while
acting in their capacities as directors or officers of each Registrant.
The Certificate of Incorporation for each Registration other than Union
Texas East Kalimantan Limited limits under certain circumstances the liability
of each Registrant's directors for a breach of their fiduciary duty as
directors. These provisions do not eliminate the liability of a director (i) for
a breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (relating to the declaration of dividends
and purchase or redemption of shares in violation of the Delaware General
Corporation Law) or (iv) for any transaction from which the director derived an
improper personal benefit.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
3.1 -- Certificate of Incorporation of each Registrant (the Company's
Certificate of Incorporation is incorporated by reference from the
identical exhibit number in Post Effective Amendment No. 1 to the
Company's Registration Statement No. 33-12800; the Guarantors'
certificates of incorporation are incorporated by reference from the
identical exhibit number in the Company's Registration Statement No.
33-52400).
*3.2 -- Bylaws, as amended, of Union Texas Petroleum Energy Corporation.
*3.3 -- Bylaws, as amended, of Union Texas International Corporation.
*3.4 -- Bylaws, as amended, of Union Texas Products Corporation.
3.5 -- Bylaws of each other Registrant, as amended (the Company's Bylaws
were filed as Exhibit 3.1 to the Company's Form 8-K dated February 4,
1993 (Commission File No. 1-9019) and are incorporated herein by
reference, and the remaining Guarantors' Bylaws were filed as Exhibit
3.2 to the Company's Registration Statement No. 33-52400 and are
incorporated herein by reference).
**4.1 -- Form of Indenture between the Company and The First National Bank of
Chicago, as trustee, with respect to Senior Debt Securities.
**4.2 -- Form of Indenture between the Company and The First National Bank of
Chicago, as trustee, with respect to Subordinated Debt Securities.
4.3 -- The Indenture for the 8.25% Senior Notes due 1999, dated as of
November 15, 1992, among the Company, the Guarantors and State Street
Bank and Trust Company as trustee, with form of note attached
(incorporated by reference from Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1994
(File No. 1-9019.))
**5.1 -- Opinion of legal counsel regarding legality of securities being
registered.
**10.1 -- Amended and Restated Credit Agreement, dated as of May 13, 1994,
among the Company, the Banks listed therein and NationsBank of Texas,
N.A., as agent, and Bank of America National Trust and Savings
Association and Union Bank of Switzerland, Houston Agency, as
co-agents, with form of note attached.
</TABLE>
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<PAGE> 22
<TABLE>
<S> <C>
**10.2 -- Credit Agreement, dated as of May 13, 1994, among the Company, the
Banks listed therein and NationsBank of Texas, N.A., as agent, and
Bank of America National Trust and Savings Association and Union Bank
of Switzerland, Houston Agency, as co-agents, with form of note
attached.
**10.3 -- Amended and Restated Subsidiary Guaranty Agreement dated as of May
13, 1994, among Union Texas Petroleum Energy Corporation, Union Texas
Products Corporation, Union Texas East Kalimantan Limited, Union
Texas International Corporation and Unistar, Inc., and NationsBank of
Texas, N.A., as agent.
**10.4 -- Subsidiary Guaranty Agreement dated as of May 13, 1994, among Union
Texas Petroleum Energy Corporation, Union Texas Products Corporation,
Union Texas East Kalimantan Limited, Union Texas International
Corporation and Unistar, Inc., and NationsBank of Texas, N.A., as
agent.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges.
**12.2 -- Pro forma Computation of Ratio of Earnings to Fixed Charges.
**15.1 -- Independent Accountants' Awareness Letter.
**23.1 -- Consent of Price Waterhouse.
**23.2 -- Consent of legal counsel (included in Exhibit 5.1).
*24.1 -- Power of Attorney included in Part II of the Registration Statement.
**25.1 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ------------
* Previously filed.
** Filed herewith.
ITEM 17. UNDERTAKINGS
Each undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Each 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 by Section 10(a)(3) of the Securities
Act;
(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;
(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 (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in the periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
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<PAGE> 23
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
Each undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the provisions in Item 15 above, or otherwise, each
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of
such Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, such Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE> 24
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President -- Finance
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board and May 24, 1994
(A. Clark Johnson) Chief Executive Officer
(Principal Executive
Officer)
/s/ LARRY D. KALMBACH Vice President -- Finance May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Vice President and Controller May 24, 1994
(Donald M. McMullan) (Principal Accounting
Officer)
* Director May 24, 1994
(Glenn A. Cox)
* Director May 24, 1994
(Saul A. Fox)
Director
(Edward A. Gilhuly)
* Director May 24, 1994
(James H. Greene, Jr.)
* Director May 24, 1994
(Henry R. Kravis)
* Director May 24, 1994
(Michael W. Michelson)
* Director May 24, 1994
(Stanley P. Porter)
* Director May 24, 1994
(George R. Roberts)
* Director May 24, 1994
(Richard R. Shinn)
* Director May 24, 1994
(Sellers Stough)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 25
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNION TEXAS EAST KALIMANTAN LIMITED
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director and President May 24, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Controller (Principal May 24, 1994
(Robert V. Deere) Accounting Officer)
* Director May 24, 1994
(Johnnie J. Cox)
* Director May 24, 1994
(James E. Knight)
* Director May 24, 1994
(William M. Krips)
* Director May 24, 1994
(Newton W. Wilson, III)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 26
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNION TEXAS PETROLEUM ENERGY
CORPORATION
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ---
<S> <C> <C>
* Director and President May 24, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Controller (Principal May 24, 1994
(Robert V. Deere) Accounting Officer)
* Director May 24, 1994
(James E. Knight)
* Director May 24, 1994
(William M. Krips)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 27
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNION TEXAS INTERNATIONAL CORPORATION
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director and President May 24, 1994
(William M. Krips) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Controller (Principal May 24, 1994
(Robert V. Deere) Accounting Officer)
* Director May 24, 1994
(James E. Knight)
* Director May 24, 1994
(Arthur W. Peabody, Jr.)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-8
<PAGE> 28
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNION TEXAS PRODUCTS CORPORATION
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director and President May 24, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Controller (Principal May 24, 1994
(C. J. Smith) Accounting Officer)
* Director May 24, 1994
(William M. Krips)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-9
<PAGE> 29
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 24, 1994.
UNISTAR, INC.
By: /s/ LARRY D. KALMBACH
Larry D. Kalmbach
Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director and President May 24, 1994
(Arthur W. Peabody, Jr.) (Principal Executive
Officer)
/s/ LARRY D. KALMBACH Director and Vice President May 24, 1994
(Larry D. Kalmbach) (Principal Financial
Officer)
* Controller (Principal May 24, 1994
(Robert V. Deere) Accounting Officer)
* Director May 24, 1994
(William M. Krips)
* /s/ LARRY D. KALMBACH May 24, 1994
(Larry D. Kalmbach)
Attorney-in-Fact
</TABLE>
II-10
<PAGE> 1
A&K -- 5/15/94
================================================================================
- --------------------------------------------------------------------------------
UNION TEXAS PETROLEUM HOLDINGS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
______________________
INDENTURE
DATED AS OF __________________,
_______________________
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 2
<TABLE>
<S> <C>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Adjusted Net Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attributable Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authorized Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CEDEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Funding Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guaranteed Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hedging Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Joint Venture Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Net Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-Recourse Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-U.S. Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ordinary Course Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pari Passu Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sale/Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 102. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . .
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . .
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . .
SECTION 105. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . .
SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . .
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . .
SECTION 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . .
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . .
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 115. Corporate Obligation . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . .
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . .
SECTION 204. Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . .
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . .
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . .
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . .
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . .
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE FOUR
GUARANTEE OF SECURITIES
SECTION 401. Unconditional Guarantees . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 402. Limitation of Guarantor's Liability . . . . . . . . . . . . . . . . . .
SECTION 403. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 404. Execution and Delivery of Guarantees. . . . . . . . . . . . . . . .
SECTION 405. Addition of Guarantors. . . . . . . . . . . . . . . . . . . . . . .
SECTION 406. Release of Guarantee. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 407. Consent to Jurisdiction and Service of Process. . . . . . . . . . .
SECTION 408. Waiver of Immunity. . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 409. Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . .
SECTION 502. Application of Trust Money . . . . . . . . . . . . . . . . . . . .
SECTION 503. Discharge of Liability on Securities of Any Series . . . . . . . .
SECTION 504. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 602. Acceleration of Maturity; Rescission and Annulment . . . . . . . .
SECTION 603. Collection of Indebtedness and Suits for Enforcement by Trustee . .
SECTION 604. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . .
SECTION 605. Trustee May enforce Claims Without Possession of Securities
or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 606. Application of Money Collected . . . . . . . . . . . . . . . . . .
SECTION 607. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 608. Unconditional Right of Holders to Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 609. Restoration of Rights and Remedies . . . . . . . . . . . . . . . .
SECTION 610. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . .
SECTION 611. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . .
SECTION 612. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 613. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . .
SECTION 614. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . .
SECTION 615. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . .
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities . . . . . . . . . . . . . . . .
SECTION 702. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 703. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . .
SECTION 704. Not Responsible for Recitals or Issuance of Securities . . . . . .
SECTION 705. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 706. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 707. Compensation and Reimbursement . . . . . . . . . . . . . . . . . .
SECTION 708. Disqualification; Conflicting Interests . . . . . . . . . . . . . .
SECTION 709. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . .
SECTION 710. Resignation and Removal; Appointment of Successor . . . . . . . . .
SECTION 711. Acceptance of Appointment by Successor . . . . . . . . . . . . . .
SECTION 712. Merger, Conversion, Consolidation or Succession to Business . . . .
SECTION 713. Preferential Collection of Claims Against Company . . . . . . . . .
SECTION 714. Appointment of Authenticating Agent . . . . . . . . . . . . . . . .
ARTICLE EIGHT
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee Names and Addresses of Holders . . . . .
SECTION 802. Preservation of Information; Communications to Holders . . . . . .
SECTION 803. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 804. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 901. Company May Consolidate, Etc., Only on Certain Terms . . . . . . .
SECTION 902. Successor Person Substituted . . . . . . . . . . . . . . . . . . .
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent of Holders . . . . . . . .
SECTION 1002. Supplemental Indentures With Consent of Holders . . . . . . . . . .
SECTION 1003. Execution of Supplemental Indentures . . . . . . . . . . . . . . .
SECTION 1004. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . .
SECTION 1005. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . .
SECTION 1006. Reference in Securities to Supplemental Indentures . . . . . . . .
ARTICLE ELEVEN
COVENANTS
SECTION 1101. Payment of Principal, Premium and Interest . . . . . . . . . . . .
SECTION 1102. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . .
SECTION 1103. Money for Securities Payments to be Held in Trust . . . . . . . . .
SECTION 1104. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1105. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . .
SECTION 1106. Limitation on Sale/Leaseback Transactions . . . . . . . . . . . . .
SECTION 1107. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1108. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . .
SECTION 1109. Statement by Officers as to Default . . . . . . . . . . . . . . . .
SECTION 1110. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . .
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
SECTION 1111. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . .
SECTION 1202. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . .
SECTION 1203. Selection by Trustee of Securities to be Redeemed . . . . . . . . .
SECTION 1204. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1205. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . .
SECTION 1206. Securities Payable on Redemption Date . . . . . . . . . . . . . . .
SECTION 1207. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . .
SECTION 1208. Purchase of Securities . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . .
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities . . . . . . .
SECTION 1303. Redemption of Securities for Sinking Fund . . . . . . . . . . . . .
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . .
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . .
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . .
SECTION 1404. Quorum Action . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . .
</TABLE>
vi
<PAGE> 8
Union Texas Petroleum Holdings, Inc.
Reconciliation and Tie Between Trust Indenture Act of 1939
and Indenture, Dated as of ______________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708, 710
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801, 802(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804, 1109
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702, 803(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 612
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
vii
<PAGE> 9
INDENTURE, dated as of _______________, between UNION TEXAS PETROLEUM
HOLDINGS, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1330 Post Oak Boulevard, Houston, Texas 77056, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is principally administered being One First National Plaza,
Suite 0126, Chicago, IL 60670-0126.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
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 accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, 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 in the United States at the date of such
computation; and
(3) 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.
1
<PAGE> 10
Certain terms, used principally in Article Seven, are defined in
Section 102.
"Act," when used with respect to any Holder, has the meaning specified
in Section 105.
"Additional Amounts" means any additional amounts that are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with respect
to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"Adjusted Net Assets" of a Guarantor at any date means the lesser of
(x) the amount by which the fair value of the property of such Guarantor at
such date exceeds the total amount of liabilities, including, without
limitation, the probable amount of contingent liabilities (after giving effect
to all other fixed and contingent liabilities incurred or assumed on such date)
of such Guarantor at such date, but excluding liabilities under the Guarantee
of such Guarantor, and (y) the amount by which the present fair saleable value
of the assets of such Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date and after giving effect to any collection from any Subsidiary of
such Guarantor in respect of any obligations of such Subsidiary under the
Guarantee of such Guarantor), excluding debt in respect of the Guarantee of
such Guarantor, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Indebtedness", when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at a rate equivalent to the Company's then current weighted
average cost of funds for borrowed money as at the time of determination,
compounded on a semi-annual basis) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 714 to authenticate Securities of one or more series.
"Authorized Agent" has the meaning specified in Section 407.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
2
<PAGE> 11
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in temporary or permanent
global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 204.
"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 or executive order to close.
"Capital Stock" of any Person means and includes any and all shares,
rights to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock
and partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any obligation of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes
in accordance with generally accepted accounting principles; and the amount of
such obligation shall be the capitalized amount thereof determined in
accordance with generally accepted accounting principles.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A., or, if any time after the execution of this instrument,
Centrale de Livraison de Valeurs Mobilieres S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any series
(i) if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially
represented by a temporary global Security, the earlier of (A) the Exchange
Date with respect to Securities of such series and (B), if the first Interest
Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this 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 Depositary" has the meaning specified in Section 304.
3
<PAGE> 12
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Guarantee" has the meaning specified in Section 401.
"Company Request" and "Company Order" mean, respectively, 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 Worth" of the Company means the consolidated
stockholders' equity of the Company and its Subsidiaries, as determined in
accordance with generally accepted accounting principles.
"Conversion Event" has the meaning specified in Section 601.
"Corporate Trust Office" means the principal office of the Trustee in
the city of Chicago, Illinois, at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 601.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 601.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"Funding Guarantor" has the meaning specified in Section 403.
4
<PAGE> 13
"Guarantee" has the meaning specified in Section 401.
"Guaranteed Securities" has the meaning specified in Section 301.
"Guarantor" means (i) each Subsidiary of the Company executing this
Indenture, (ii) each Subsidiary of the Company that becomes a guarantor of the
Securities pursuant to Section 405, (iii) each Subsidiary of the Company that
executes a supplemental indenture in which such Subsidiary agrees to be bound
by Article 4 and (iv) any Subsidiary of the Company that is a successor
corporation of any Subsidiary of the Company referred to in clauses (i) through
(iii). The term "Guarantor" shall not include any Subsidiary of the Company
referred to in clauses (i) through (iv) that shall have been released from its
obligations under Article 4 pursuant to Section 406.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or future contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
"Indebtedness" of any Person at any date means, without duplication,
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof), (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit incurred by such Person in the ordinary course of business, (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred in
the ordinary course of business, (v) all Capitalized Lease Obligations of such
Person, (vi) all Indebtedness of others secured by a lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person, (vii) all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee and (viii) all Hedging Obligations of such Person.
"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 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"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.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Joint Venture Indebtedness" means obligations secured by a Lien on
the interests of the Company or a Restricted Subsidiary, as the case may be,
arising under production sharing contracts or related supply contracts, if such
Lien covers ratably the interests of Pertamina, the Indonesian national oil
company, and all production sharing contracts thereunder.
"Judgment Currency" has the meaning specified in Section 409.
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<PAGE> 14
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Indenture, the Company or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capitalized Lease
Obligation (other than any Capitalized Lease Obligation relating to any
building, structure, equipment or other property used or to be used in the
ordinary course of business of the Company and the Restricted Subsidiaries) or
other title retention agreement relating to such asset.
"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.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Subsidiary, the aggregate net proceeds
received by the Company or such Subsidiary from such Sale/Leaseback Transaction
after payment of expenses, taxes, commissions and similar amounts incurred in
connection therewith, whether such proceeds are in cash or in property (valued
at the fair market value thereof at the time of receipt, as determined by the
Board of Directors).
"Non-Recourse Indebtedness" means, at any date, the aggregate amount
at such date of Indebtedness of the Company or a Subsidiary in respect of which
the recourse of the holder of such Indebtedness, whether direct or indirect and
whether contingent or otherwise, is effectively limited to specified assets.
"Non-U.S. Guarantor" has the meaning specified in Section 407.
"Officer" means the Chairman, the President, the Treasurer, any
Assistant Treasurer, Controller, Secretary, Assistant Secretary or any Vice
President of a Person.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, the Controller, the
Secretary or an Assistant Treasurer, Assistant Controller or Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or levies
on the property of the Company or any Restricted Subsidiary if the same shall
not at the time be delinquent or thereafter can be paid without penalty, or are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles shall have
been set aside on the books of the Company.
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens arising in the ordinary
course of business which secure obligations not more than
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<PAGE> 15
60 days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on the books of
the Company;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the ordinary course of business of the Company and the Restricted
Subsidiaries;
(e) Liens arising under operating agreements or similar agreements
in respect of obligations which are not yet due or which are being contested in
good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production
sharing contracts and petroleum concession agreements and licenses for bonus or
rental payments and for compliance with the terms of such leases, contracts,
agreements and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or
mineral lease, production sharing contracts, petroleum concession agreements
and licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements, operating
agreements, development agreements, area of mutual interest agreements, and
other agreements which are customary in the oil, gas and other mineral
exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
(h) Liens on personal property (excluding the Capital Stock of any
Restricted Subsidiary) securing Indebtedness of the Company or any Restricted
Subsidiary other than Funded Indebtedness; and
(i) Liens which secure a judgment or other court-ordered award or
settlement as to which the Company has not exhausted its appellate rights.
"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 602.
"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 and any coupons
appertaining thereto; provided
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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, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 602, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, 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.
"Pari Passu Indebtedness" means any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall be subordinated in right of
payment to the Securities.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of 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 specified in
accordance with Section 301 subject to the provisions of Section 1102.
"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 or a Security to which a
mutilated, destroyed, lost or stolen
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<PAGE> 17
coupon appertains, shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which a mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301, or, if not so specified, the last
day of the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of the calendar month or the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the first date of a calendar month, whether or not such day
shall be a Business Day.
"Required Currency" has the meaning specified in Section 606.
"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.
"Restricted Subsidiary" means (i) each Subsidiary of the Company
executing this Indenture, (ii) Union Texas Petroleum Limited so long as it is a
Subsidiary of the Company and (iii) any Subsidiary of the Company that is a
successor corporation of any Subsidiary of the Company referred to in clauses
(i) and (ii). The status of any Subsidiary of the Company as a Restricted
Subsidiary shall continue, irrespective of any release of any Guarantee
provided by such Subsidiary under Article 4, so long as it is a Subsidiary of
the Company.
"Sale/Leaseback Transaction" has the meaning specified in Section 1106.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities and any Guaranteed
Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 1005.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning specified in Section 501.
"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."
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
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.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent),
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 (including any covenants the
compliance with which constitutes a condition precedent), 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 Person 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 Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(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 an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at a meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments and any such records.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are deliverable
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 701) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1406.
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The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote
or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation. If a record date is fixed,
those Persons who were Holders of Outstanding Registered Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section
107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
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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 Services Division 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 (a) in the case of Registered
Securities, 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, Attention: General
Counsel; and (b) in the case of Bearer Securities, at the address of
an office or agency located outside the United States maintained by
the Company in accordance with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (i) to Holders of Registered Securities if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice and (ii) to Holders of Bearer Securities if published
in an Authorized Newspaper in the City of New York and London or other capital
city in Western Europe and in such other city or cities as may be specified in
such Bearer Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice.
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 to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
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SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities (or any
coupon appertaining thereto) shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent and Security Registrar, and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON APPERTAINING THERETO)
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 114. 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 or coupons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, 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
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that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obligations of the
Company or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining thereto
shall be in substantially such form or forms (including temporary or permanent
global 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
or coupons appertaining thereto, as evidenced by their execution of the
Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the Board
Resolution establishing the form or forms of Securities or coupons appertaining
thereto of any series (or any such temporary global Security) shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By___________________________________
Authorized Signatory".
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SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security
or, in the case of a global Bearer Security, of Euroclear or CEDEL S.A., which
is produced to the Security Registrar by such Holder, Euroclear or CEDEL S.A.,
as the case may be.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form. Permanent global Securities will be
issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the contrary:
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(a) At the discretion of the Company, any Registered Security may
be issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security". Upon such election, the Company shall execute, and the Trustee or an
Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series, (ii) are
registered in the name of the Depositary or its nominee, (iii) are delivered by
the Trustee or an Authenticating Agent to the Depositary or pursuant to the
Depositary's instructions and (iv) bear a legend in substantially the following
form (or such other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS
AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and
delivered as provided in Section 303. Notwithstanding any other provision of
this Indenture, unless and until it is exchanged in whole or in part for
Registered Securities not issued in global form, a Book-Entry Security may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary, 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 or a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company or the
Trustee that it is unwilling or unable to continue as Depositary for any
Book-Entry Securities, the Company shall appoint a successor Depositary,
whereupon the retiring Depositary shall surrender or cause the surrender of its
Book-Entry Security or Securities to the Trustee. The Trustee shall promptly
notify the Company upon receipt of such notice. If a successor Depositary has
not been so appointed by the effective date of the resignation of the
Depositary, the Book-Entry Securities will be issued as Registered Securities
not issued in global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the Depositary. Upon receipt of
such notice, the Depositary shall promptly surrender or cause the surrender of
its Book-Entry Security or Securities to the Trustee. Concurrently therewith,
Registered Securities not issued in global form will be issued in an aggregate
principal amount equal to the principal amount of the Book-Entry Security or
Securities theretofore held by the Depositary.
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Upon any exchange of Book-Entry Securities for Registered Securities
not issued in global form as set forth in this Section 204(c), such Book-Entry
Securities shall be cancelled by the Trustee, and Securities issued in exchange
for such Book-Entry Securities pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Book-Entry Securities, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee or any
Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the
Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws,
notwithstanding any notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no responsibility for
transmitting payments to, communication with, notifying, or otherwise dealing
with any beneficial owners of any Book-Entry Security. Neither the Company nor
the Trustee shall have any responsibility or obligations, legal or otherwise,
to the beneficial owners or to any other party including the Depositary, except
for the Holder of any Book-Entry Security, provided, however, notwithstanding
anything herein to the contrary, (i) for the purposes of determining whether
the requisite principal amount of Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver,
instruction or other action hereunder as of any date, the Trustee shall treat
any Person specified in a written statement of the Depositary with respect to
any Book-Entry Securities as the Holder of the principal amount of such
Securities set forth therein and (ii) nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
with respect to any Book-Entry Securities, or impair, as between a Depositary
and holders of beneficial interests in such Securities, the operation of
customary practices governing the exercise of the rights of the Depositary as
Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name
of a Depositary or its nominee, all payments of the principal of (and premium,
if any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book-Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
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);
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(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 Section 304, 305,
306, 906 or 1207);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form, as Book-Entry Securities or
otherwise, with or without coupons appertaining thereto and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable or the
method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions
of Section 1102, the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(8) the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
must exercise any such option;
(9) 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 (whether
denominated in cash, securities or otherwise) 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;
(10) the denomination in which any Registered Securities
of that series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the
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denomination in which any Bearer Securities of that series shall be
issuable, if other than the denomination of $5,000;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series shall be payable if other than the currency
of the United States of America;
(12) if the principal of (and premium, if any) or interest
on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies
(including composite currencies) other than that in which the
Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of
(and premium, if any) and interest on, and any Additional Amounts with
respect to, Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) if the amount of payments of principal of (and
premium, if any), any interest on and any Additional Amounts with
respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, or values, rates
or prices, the manner in which such amounts shall be determined;
(14) 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 602;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 501, any additional conditions to discharge pursuant to
Section 501 or 503 and the application, if any, of Section 503;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 601 or covenants of the Company
set forth in Article Ten pertaining to the Securities of the series;
and
(17) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except in the
case of Registered Securities, as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to above and
(subject to Section 303) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Registered Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder 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, a copy of an appropriate record of such action
together with such Board Resolution shall be certified by
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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.
At the direction of the Company and the Guarantors, the Securities of
any series may be guaranteed (the "Guaranteed Securities").
SECTION 302. Denominations.
The Securities of each series shall be issuable 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 Registered
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of such series denominated in Dollars shall be issuable in the
denominations of $5,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, 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, its President, its Treasurer or one of its Vice Presidents, under
its corporate seal, which may be in facsimile form, reproduced thereon or
affixed thereto and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may
be manual or facsimile. Coupons shall bear the facsimile signature of the
Chairman, President, Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary global security in bearer form delivered as provided in Section 304)
be delivered outside the United States in connection with its original issuance
and only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A to this Indenture,
or in such other form of certificate as shall contain information then required
by federal income tax laws and, if applicable, federal securities laws, dated
no earlier than the Certification Date. If any Security shall be represented by
a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation
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of a beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with sale, during the "restricted period"
(as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
701) 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 Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to 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, together with any coupons
appertaining thereto, 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 legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other laws relating to
or affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
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 Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security
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shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons appertaining thereto or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form. A temporary Bearer Security shall
be delivered only in compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without 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 (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of 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; provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global Bearer
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of Euroclear and CEDEL S.A. for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security,
executed by the Company. On or after the Exchange Date such temporary global
Bearer Security shall be surrendered by the Common Depositary to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities of that series without charge and
the Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Bearer Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary global Bearer Security to be
exchanged; provided, however, that unless otherwise specified in such temporary
global Bearer Security, no such definitive Securities shall be delivered
unless, upon such presentation by the Common Depositary, such temporary global
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<PAGE> 33
Bearer Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Bearer Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL
S.A. as to the portion of such temporary global Bearer Security held for its
account then to be exchanged, each in the form set forth in Exhibit B to this
Indenture. The definitive Securities to be delivered in exchange for any such
temporary global Bearer Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and if any
combination thereof is so specified, as requested by the beneficial owner
thereof.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
Euroclear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL S.A. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Bearer Security shall be
delivered only outside the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to Euroclear and
CEDEL S.A. on such Interest Payment Date upon delivery by Euroclear and CEDEL
S.A. to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A to this
Indenture. Any interest so received by Euroclear or CEDEL S.A. and not paid as
herein provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company in accordance with Section 1103.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1102 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
Registered Securities and of transfers of Registered Securities of such series.
The Trustee is hereby initially appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Registered 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
Registered Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
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. A Holder of
Registered Securities cannot have Bearer Securities issued in exchange for such
Registered Securities.
At the option of the Holder of Bearer Securities of any series, such
Bearer Securities may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive from the Company the amount of such payment; provided, however, that,
except as otherwise provided in Section 1102, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than
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the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that series in an
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 103 or be accompanied by an Opinion of Counsel) by
the Common Depositary or such other depositary or Common Depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of other definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged which, unless the Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 301, shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; provided, however, that no
such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities of that series is to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depositary or such other
depositary or Common Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date; or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable
on such Interest Payment Date or proposed for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made 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
exchange pursuant to Section 304, 906 or 1207 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
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a notice of redemption of Securities of such series selected for redemption and
ending at the close of business on (A) if Securities of the series are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1102, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee connected therewith).
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupons 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.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Interest on any Bearer Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the bearer of the applicable coupon appertaining to such Bearer
Security. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company (i) in the
case of Registered Securities, by check mailed or delivered to the address of
any Person entitled thereto as such address shall appear in the Security
Register, or (ii) in the case of Bearer Securities, except as otherwise
provided in Section 1002, upon presentation and surrender of the appropriate
coupon appertaining thereto at an office or agency of the Company in a Place of
Payment located outside the United States or by transfer to an account
maintained by the payee with a bank located outside the United States.
Any interest on any Registered 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 Registered
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
Registered 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 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 Registered 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. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or
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their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which 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, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Registered 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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon 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 and coupons 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. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held
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by the Trustee shall be disposed of as directed by a Company Order; provided
that the Trustee shall not be required to destroy such Securities.
In the case of any temporary global Bearer Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by Euroclear or
CEDEL S.A., have been duly presented to the Trustee for such Securities by
Euroclear or CEDEL S.A., as the case may be. Permanent global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 310. Computation of Interest.
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.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
GUARANTEE OF SECURITIES
SECTION 401. Unconditional Guarantees.
(a) For value received, (i) the Guarantors, jointly and severally,
hereby fully, unconditionally and absolutely guarantee (the "Guarantees") to
the Holders and to the Trustee the due and punctual payment of the principal
of, and premium, if any, and interest on the Guaranteed Securities and all
other amounts due and payable under this Indenture and the Guaranteed
Securities by the Company, and (ii) the Company hereby fully, unconditionally
and absolutely guarantees (the "Company Guarantee") to the Holders and to the
Trustee the obligations of the Guarantors described in clause (i), each when
and as such principal, premium, if any, and interest shall become due and
payable, whether at the stated maturity or by declaration of acceleration, call
for redemption or otherwise, according to the terms of the Guaranteed
Securities and this Indenture.
(b) Failing payment when due of any amount guaranteed pursuant to
the Guarantees, for whatever reason, each Guarantor will be obligated to pay
the same immediately. Each Guarantee hereunder is intended to be a general,
unsecured, senior obligation of each Guarantor and will rank pari passu in
right of payment with all Indebtedness of each such Guarantor that is not, by
its terms, expressly subordinated in right of payment to the Guarantee of such
Guarantor. Each of the Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Guaranteed Securities, the Guarantees or
this Indenture, the absence of
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any action to enforce the same, any waiver or consent by any Holder of the
Guaranteed Securities with respect to any provisions hereof or thereof, any
release of any other Guarantor, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each of the Guarantors hereby agrees that in the event of a default in payment
of the principal of, or premium, if any, or interest on the Guaranteed
Securities, whether at the stated maturity or by declaration of acceleration,
call for redemption or otherwise, legal proceedings may be instituted by the
Trustee on behalf of the Holders or, subject to Section 607, by the Holders, on
the terms and conditions set forth in this Indenture, directly against each of
the Guarantors to enforce the Guarantees without first proceeding against the
Company.
(c) Failing payment of the Guarantees, for whatever reason, the
Company will be obligated to pay, or to perform or cause the performance of,
the same immediately. The Company Guarantee is intended to be a general,
unsecured, senior obligation of the Company and will rank pari passu in right
of payment with all Indebtedness of the Company that is not, by its terms,
expressly subordinated in right of payment to the Company Guarantee. The
Company hereby agrees that its obligations under the Company Guarantee shall be
full, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Guaranteed Securities, the Guarantees, the Company
Guarantee or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Guaranteed Securities with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company or any Guarantor, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Company.
(d) The obligations of each Guarantor and the Company under this
Article 4 shall be as aforesaid full, unconditional and absolute and shall not
be impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company or any
Guarantor contained in the Guaranteed Securities or this Indenture, (ii) any
impairment, modification, release or limitation of the liability of the
Company, any Guarantor or any of their estates in bankruptcy, or any remedy for
the enforcement thereof, resulting from the operation of any present or future
provision of any applicable bankruptcy law, as amended, or other statute or
from the decision of any court, (iii) the assertion or exercise by the Company,
any Guarantor or the Trustee of any rights or remedies under the Guaranteed
Securities or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of
any property as security for the Guaranteed Securities, including all or any
part of the rights of the Company or any Guarantor under this Indenture, (v)
the extension of the time for payment by the Company or any Guarantor of any
payments or other sums or any part thereof owing or payable under any of the
terms and provisions of the Guaranteed Securities or this Indenture or of the
time for performance by the Company or any Guarantor of any other obligations
under or arising out of any such terms and provisions or the extension or the
renewal of any thereof, (vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Company or any Guarantor
set forth in this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company or any of the Guarantors or any of their respective
assets, or the disaffirmance of the Guaranteed Securities, the Guarantees, the
Company Guarantee or this Indenture in any such proceeding, (viii) the release
or discharge of the Company or any Guarantor from the performance or observance
of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of the Guaranteed
Securities, the Guarantees,
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the Company Guarantee or this Indenture or (x) any other circumstance which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
(e) The Guarantors and the Company each hereby (i) waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of the merger, insolvency or bankruptcy of the Company or a Guarantor,
and all demands whatsoever, (ii) acknowledges that any agreement, instrument or
document evidencing the Guarantees or the Company Guarantee may be transferred
and that the benefit of its obligations hereunder shall extend to each holder
of any agreement, instrument or document evidencing the Guarantees or the
Company Guarantee without notice to them and (iii) covenants that its Guarantee
or the Company Guarantee, as the case may be, will not be discharged except by
complete performance of the Guarantees or the Company Guarantee, as the case
may be. Each Guarantor and the Company further agrees that if at any time all
or any part of any payment theretofore applied by any Person to any Guarantee
or the Company Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including without limitation, the insolvency, bankruptcy or
reorganization of the Company or any Guarantor, such Guarantee or the Company
Guarantee, as the case may be, shall, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantees or the Company Guarantee,
as the case may be, shall continue to be effective or be reinstated, as the
case may be, as though such application had not been made.
(f) Each Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Company in respect of any amounts paid by
such Guarantor pursuant to the provisions of this Indenture, provided, however,
that no Guarantor shall be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until all of the
Guaranteed Securities and the Guarantees shall have been paid in full or
discharged.
(g) A director, officer, employee or stockholder, as such, of any
Guarantor shall not have any liability for any obligations of such Guarantor
under this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation.
SECTION 402. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by
such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any federal, state or foreign law. To effectuate
the foregoing intention, the Holders and each Guarantor hereby irrevocably
agree that the obligations of each Guarantor under its Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 403, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal, state or foreign law.
SECTION 403. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Guarantor
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in a pro rata amount based on the Adjusted Net Assets of each Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Company's obligations with
respect to the Guaranteed Securities or any other Guarantor's obligations with
respect to its Guarantee.
SECTION 404. Execution and Delivery of Guarantees.
To further evidence the Guarantees set forth in Section 401, each
Guarantor hereby agrees that a notation relating to such Guarantees shall be
endorsed on each Guaranteed Security authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of two Officers of each
Guarantor.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 401 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation relating to such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 405. Addition of Guarantors.
(a) If any Subsidiary of the Company guarantees any Funded
Indebtedness of the Company other than the Guaranteed Securities at any time
subsequent to the Issue Date (including, without limitation, following any
release of such Subsidiary pursuant to Section 406 from any Guarantee
previously provided by it under this Article 4), then the Company shall (i)
cause the Guaranteed Securities to be equally and ratably guaranteed by such
Subsidiary, but only to the extent that the Guaranteed Securities are not
already guaranteed by such Subsidiary on reasonably comparable terms and (ii)
cause such Subsidiary to execute and deliver a supplemental indenture
evidencing its provision of a Guarantee in accordance with clause (b) below.
(b) Any Person that was not a Guarantor on the Issue Date may
become a Guarantor by executing and delivering to the Trustee (i) a
supplemental indenture in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Guarantor and (ii) an Opinion of Counsel and
Officers' Certificate to the effect that such supplemental indenture has been
duly authorized and executed by such Person and constitutes the legal, valid,
binding and enforceable obligation of such Person (subject to such customary
exceptions concerning creditors' rights and equitable principles as may be
acceptable to the Trustee in its discretion and provided that no opinion need
be rendered concerning the enforceability of the Guarantee).
SECTION 406. Release of Guarantee.
Notwithstanding anything to the contrary in this Article 4, in the
event that any Guarantor shall no longer be a guarantor of any Funded
Indebtedness of the Company other than the Guaranteed Securities, and so long
as no default or Event of Default shall have occurred or be continuing, such
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Guarantor, upon giving notice to the Trustee to the foregoing effect, shall be
deemed to be released from all of its obligations under this Indenture and the
Guarantee of such Guarantor shall be of no further force or effect. Following
the receipt by the Trustee of any such notice, the Company shall cause this
Indenture to be amended as provided in Section 1001; provided, however, that
the failure to so amend this Indenture shall not affect the validity of the
termination of the Guarantee of such Guarantor.
SECTION 407. Consent to Jurisdiction and Service of Process.
Each Guarantor that is not organized under the laws of the United
States (including the States and the District of Columbia) (each a "Non-U.S.
Guarantor") hereby appoints the principal office of CT Corporation System in
The City of New York which, on the date hereof, is located at 1633 Broadway,
New York, New York 10019, as the authorized agent thereof (the "Authorized
Agent") upon whom process may be served in any action, suit or proceeding
arising out of or based on this Indenture or the Guaranteed Securities which
may be instituted in the Supreme Court of the State of New York or the United
States District Court for the Southern District of New York, in either case in
The Borough of Manhattan, The City of New York, by the Holder of any Security,
and each Non-U.S. Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding and expressly and
irrevocably accepts and submits, for the benefit of the Holders from time to
time of the Guaranteed Securities, to the nonexclusive jurisdiction of any such
court in respect of any such action, suit or proceeding, for itself and with
respect to its properties, revenues, and assets. Such appointment shall be
irrevocable unless and until the appointment of a successor authorized agent
for such purpose, and such successor's acceptance of such appointment, shall
have occurred. Each Non-U.S. Guarantor agrees to take any and all actions,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent with respect to any such action
shall be deemed, in every respect, effective service of process upon any such
Non-U.S. Guarantor. Notwithstanding the foregoing, any action against any
Non-U.S. Guarantor arising out of or based on any Security may also be
instituted by the Holder of such Security in any court in the jurisdiction of
any such court in any such action. The Company shall require the Authorized
Agent to agree in writing to accept the foregoing appointment as agent for
service of process.
SECTION 408. Waiver of Immunity.
To the extent that any Non-U.S. Guarantor or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with this Indenture or
the Guaranteed Securities, such Non-U.S. Guarantor, to the maximum extent
permitted by law, hereby irrevocably and unconditionally waives, and agrees not
to plead or claim, any such immunity and consents to such relief and
enforcement.
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SECTION 409. Judgment Currency.
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each
Holder against any loss incurred by it as a result of any judgment or order
being given or made and expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in The City of New York at which the Trustee
or such Holder on the date of payment of such judgment or order is able to
purchase United States dollars with the amount of the Judgment Currency
actually received by the Trustee or such Holder. The foregoing indemnity shall
constitute a separate and independent obligation of each Non-U.S. Guarantor and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any
premiums and costs of exchange in connection with the purchase of, or
conversion into, United States dollars.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) with respect to all Outstanding Securities of
such series and any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, the Company has deposited
or caused to be deposited with the Trustee as trust funds, under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, for the purpose money or U.S. Government
Obligations maturing as to principal and interest in such amounts and
at such times as will, together with the income to accrue thereon,
without consideration of any reinvestment thereof, be sufficient to
pay and discharge the entire indebtedness on all Outstanding
Securities of such series and coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
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Stated Maturity or any Redemption Date contemplated by the penultimate
paragraph of this Section, as the case may be; or
(c) the Company has properly fulfilled such
other means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the Securities of
such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 501;
(4) 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 with respect to the Outstanding
Securities of such series have been complied with;
(5) if the conditions set forth in Section 501(1)(a)
have not been satisfied, and unless otherwise specified pursuant to
Section 301 for the Securities of such series, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain
or loss for United States federal income tax purposes as a result of
such deposit, satisfaction and discharge and will be subject to United
States federal income tax on the same amount and in the same manner
and at the same time as would have been the case if such deposit,
satisfaction and discharge had not occurred; and
(6) no default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, in so far as clause (5) or (6) of Section
601 is concerned, at any time in the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged, or
beneficial interests in a trust the corpus of which consists exclusively of
money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement referred to in subclause (b) of clause (1) of this Section
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this
Section 501, the obligations of the Company to the Trustee under Section 707,
the obligations of the Trustee to any Authenticating Agent under Section 714
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and, except for a discharge pursuant to subclause (A) of clause (1) of this
Section, the obligations of the Company under Sections 305, 306, 504, 710(e),
701, 1101 and 1102 and the obligations of the Trustee under Section 502 and the
last paragraph of Section 1103 shall survive.
SECTION 502. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1103, all
money deposited with the Trustee pursuant to Section 501 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest and Additional Amounts for the payment of which
such money has been deposited with the Trustee.
SECTION 503. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities
of such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium, if any) and
interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of
Section 501 of this Indenture (other than any additional conditions
specified pursuant to Sections 301 and 501(3) and except that the
opinion referred to in Section 501(5) shall state that it is based on
a ruling by the Internal Revenue Service or other change since the
date hereof under applicable federal income tax law) with respect to
all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 503, and
(4) 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 discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 504. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 501 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 501 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 501; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on and any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular series
or it is specifically deleted or modified in or pursuant to the supplemental
indenture or Board Resolution establishing such series of Securities, or in
the form of Security for such series:
(1) default in the payment of any interest or any
Additional Amounts upon any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 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 deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; 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 one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
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(5) 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 60 consecutive
days; or
(6) 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
(7) any default shall occur which results in the
acceleration of the maturity of any Indebtedness of the Company or any
Restricted Subsidiary (other than the Securities or any Non-Recourse
Indebtedness) having an outstanding principal amount of $20 million or
more individually or, taken together with all other such Indebtedness
that has been so accelerated, in the aggregate; or any default shall
occur in the payment of any principal or interest in respect of any
Indebtedness of the Company or any Restricted Subsidiary (other than
the Securities or any Non-Recourse Indebtedness) having an outstanding
principal amount of $20 million or more individually or, taken
together with all other such Indebtedness with respect to which any
such payment has not been made, in the aggregate and such default
shall be continuing for a period of 30 days without the Company or
such Restricted Subsidiary, as the case may be, effecting a cure of
such default.
Notwithstanding the foregoing provisions of this Section 601, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of
the Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"),
as such Exchange Rate is certified for customs purposes by the Federal Reserve
Bank of New York on the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this
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Section 601, any payment made under such circumstances in Dollars where the
required payment is in a currency other than Dollars will not constitute an
Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the Company shall
give written notice thereof to the Trustee; and the Trustee, promptly after
receipt of such notice, shall give notice thereof in the manner provided in
Section 106 to the Holders. Promptly after the making of any payment in
Dollars as a result of a Conversion Event, the Company shall give notice in the
manner provided in Section 106 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
SECTION 602. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any 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 (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 601)
or (ii) all series of Securities (subject to the immediately following
sentence, in the case of other Events of Default) may declare the principal
amount (or, if any such Securities 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 the series affected by such default or all
series, as the case may be, 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. If an Event of Default described in clause (5) or
(6) of Section 601 shall occur, the principal amount of the Outstanding
Securities of all series ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) 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 (or
of all series, as the case may be), 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, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be) and any coupons appertaining
thereto,
(b) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as the case
may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield
to Maturity),
(c) to the extent that payment of such interest
is lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in
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such Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), 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 (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 613.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 603. 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, or any Additional Amounts with respect to, any Security
of any series and any coupons appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest
and Additional Amounts 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 and Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity), 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
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem
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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 604. 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 (or lesser amount
in the case of Original Issue Discount Securities) 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 (premium, if any), interest or Additional
Amounts) 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 (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities or any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies, or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder 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 707.
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 proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 605. Trustee May Enforce Claims Without Possession of Securities
or Coupons.
All rights of action and claim under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
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SECTION 606. 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), interest or any Additional Amounts, upon presentation of the
Securities, or coupons, or both as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 707;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities; and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into the
Judgment Currency, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Business Day next preceding that on which final judgment is given. Neither
the Company nor the Trustee shall be liable for any shortfall nor shall it
benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts
the Judgment Currency into the Required Currency to make payments under this
Section to Holders of Securities, but payment of such judgment shall discharge
all amounts owed by the Company on the claim or claims underlying such
judgment.
SECTION 607. Limitation on Suits.
No Holder of any Security of any series or any related coupons 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) an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(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
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(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 of such
Holders.
SECTION 608. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 609. 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 has been instituted.
SECTION 610. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 611. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
or coupons 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.
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SECTION 612. Control by Holders.
With respect to Securities of any series, the holders of a majority in
principal amount of the Outstanding Securities of such 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, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 601, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default,
provided that in each such case
(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 613. Waiver of Past Defaults.
The Holders of 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, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a
default
(1) in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Ten cannot be modified or amended without the consent of
the Holder of each Outstanding Security 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 614. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
or coupon 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, or any Additional Amounts
with respect
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to, any Security or the payment of any coupon on or after the Stated Maturity
or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 615. 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 SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to the Securities of any series,
(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 with respect to the Securities of any series, 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 willful misconduct, except
that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
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(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 or of all series, determined as provided in
Section 612, 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 702. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 106, 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, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment 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 determines 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 601(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 703. Certain Rights of Trustee.
Subject to the provisions of Section 701:
(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, coupon, 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;
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(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, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 704. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 705. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 708 and 713, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
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SECTION 706. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 707. 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
completion 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 reasonable 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, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 708. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the
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expiration of such 90-day period, transmit by mail to all Holders of Securities
of that series, as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of
any series the Indenture dated as of _____________________ between the Company
and the Trustee relating to the Company's subordinated debt securities, this
Indenture with respect to the Securities of any series other than that series
and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 709. 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 and subject to supervision or examination by federal or
state authority. 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.
SECTION 710. 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 711.
(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 711 shall not have been delivered to the resigning 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:
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(1) the Trustee shall fail to comply with Section 708(a)
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 709
and shall fail to resign after written request therefor by the Company
or by any such Holder of Securities, 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 614, 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 such successor
Trustee or Trustees shall comply with the applicable requirements of Section
711. 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 711, 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 711, 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 Services Division.
SECTION 711. 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
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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 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.
SECTION 712. 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
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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 713. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 714. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, or in the
case of an Authenticating Agent with respect to Securities issuable as Bearer
Securities, under the laws of any country in which such Bearer Securities may
be offered, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
federal or state authority or authority of such country. 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 as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
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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 707.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By _________________________________,
as Authenticating Agent
By _________________________________,
Authorized Signatory"
Notwithstanding any provision of this Section 714 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the
Company pursuant to Section 302.
ARTICLE EIGHT
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
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(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
that series as of such dates, 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, such list to be dated as of a date not more than 15
days prior to the time such list is furnished; provided, that so long as the
Trustee is the Security Registrar, the Company shall not be required to furnish
or cause to be furnished such a list to the Trustee.
SECTION 802. 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 of each series
contained in the most recent list furnished to the Trustee as provided in
Section 801 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 801 upon receipt of a new list so
furnished.
(b) Holders of Securities may communicate pursuant to the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 802(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 802(b).
SECTION 803. Reports by Trustee.
(a) Within 60 days after ________ of each year commencing with
the year 1994, the Trustee shall transmit by mail to Holders a brief report
dated as of such __________ that complies with Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the
names and addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the
two years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Security whose
name and address is preserved at the time by the Trustee, as provided
in Section 802(a).
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(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 803 shall, at the time of its 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 804. 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 (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 901. 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 and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all Additional Amounts, if
any) 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, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 902. Successor Person Substituted.
Upon any consolidation by the Company with or merger by 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 901, 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
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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 such lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and coupons.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and any
coupons appertaining thereto (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or otherwise secure any series of the
Securities or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with
respect to all or any series of the Securities (and, if such Event of
Default is applicable to less than all series of Securities,
specifying the series to which such Event of Default is applicable);
or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; 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 adversely affected by such change in or elimination of such
provision; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
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(7) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Section 501; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 711(b); or
(9) to provide for Guarantees of the Securities
pursuant to Article Four; or
(10) 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 questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any
material respect.
SECTION 1002. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), 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 and any related
coupons under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon,
any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts (except as contemplated by Section 901(1)
and permitted by Section 1001(1)), 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 602, or change any Place of Payment where, or the
coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
Additional Amounts with respect thereto 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
Outstanding Securities, 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
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(3) modify any of the provisions of this Section,
Section 613 or Section 1108, except to increase any such percentage or
to provide with respect to any particular series the right to
condition the effectiveness of any supplemental indenture as to that
series on the consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 301 without the
consent of any Holder) 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 comment
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1110, or
the deletion of this proviso, in accordance with the requirements of
Sections 711(b) and 1001(7).
A supplemental indenture which changes or eliminates early 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 1003. 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 701) 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, immunities or liabilities under this Indenture or
otherwise.
SECTION 1004. 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 1005. 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 1006. 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
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shall so determine, new Securities of any series and any coupons appertaining
thereto 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 and any coupons appertaining thereto.
ARTICLE ELEVEN
COVENANTS
SECTION 1101. 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), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, on any
interest due on and Additional Amounts payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1102. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Bearer Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts with
respect to Bearer Securities of that series); provided however, that if the
Securities of that series are listed on the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or
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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 Services Division of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts with respect to Bearer
Securities of that series) at the office of any Paying Agent for such series
located outside the United States, and the Company hereby appoints the Trustee
as its office or agency to receive such presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on, or Additional Amounts
with respect to, Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States, nor shall any payments be made in respect of Bearer Securities
or coupons appertaining thereto pursuant to the presentation to the Company or
its designated Paying Agents within the United States; provided, however, that,
if the Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any Additional Amounts payable on Securities of such series) shall be made at
the office of the Company's Paying Agent in The Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or Additional Amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 1103. 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 and any coupons appertaining thereto, it
will, on or before each due date of the principal of (and premium, if any) or
interest on or any Additional Amounts with respect to any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons appertaining thereto, the Company
will, on or before 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.
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:
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(1) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any Additional
Amounts with respect to 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), interest
on or any Additional Amounts with respect to 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 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
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security and coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in The Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified herein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1104. 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.
SECTION 1105. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent that Company from
discontinuing the
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operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1106. Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any arrangement providing for the leasing by the Company or any
Restricted Subsidiary for a period of more than three years, of any real or
tangible personal property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person in
contemplation of such leasing (a "Sale/Leaseback Transaction") with any Person
(other than the Company or a Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled
to incur Indebtedness, in a principal amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction, secured by a Lien
on the property subject to such Sale/Leaseback Transaction pursuant to Section
1107 without equally and ratably securing the Securities pursuant to such
Section;
(b) after the Issue Date and within a period commencing six
months prior to the consummation of such Sale/Leaseback Transaction and ending
six months after the consummation thereof, the Company or such Restricted
Subsidiary shall have expended for property used or to be used in the ordinary
course of business of the Company and the Restricted Subsidiaries (including
amounts expended for the exploration, drilling or development thereof, and for
additions, alterations, repairs and improvements thereto) an amount equal to
all or a portion of the Net Proceeds of such Sale/Leaseback Transaction and the
Company shall have elected to designate such amount as a credit against such
Sale/Leaseback Transaction (with any such amount not being so designated to be
applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the effective
date of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of Securities or any Pari Passu Indebtedness an amount
equal to the greater of the Net Proceeds of the sale or transfer of the
property leased in such Sale/Leaseback Transaction and the fair value, as
determined by the Board of Directors of the Company, of such property at the
time of entering into such Sale/Leaseback Transaction (in either case adjusted
to reflect the remaining term of the lease and any amount expended by the
Company as set forth in clause (b) above), less an amount equal to the
principal amount of Securities and Pari Passu Indebtedness voluntarily defeased
or retired by the Company within such 12-month period and not designated as a
credit against any other Sale/Leaseback Transaction entered into by the Company
or any Subsidiary during such period.
SECTION 1107. Limitation on Liens
No provision of this Indenture or the Securities shall in any way
restrict or prevent the Company or any Restricted Subsidiary from issuing,
assuming, guaranteeing or otherwise incurring any Indebtedness, provided,
however, that the Company shall not, and shall not permit any Restricted
Subsidiary to, issue, assume or guarantee any Indebtedness for borrowed money
secured by any Lien on any property or asset now owned or hereafter acquired by
the Company or such Restricted Subsidiary without making effective provision
whereby any and all Securities then or thereafter outstanding will be secured
by a Lien equally and ratably with any and all other obligations thereby
secured for so long as
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any such obligations shall be so secured. Notwithstanding the foregoing, the
Company or any Restricted Subsidiary may, without so securing the Securities,
issue, assume or guarantee Indebtedness secured by the following Liens:
(a) Liens existing on the Issue Date or provided for under the
terms of agreements existing on the Issue Date;
(b) Liens on property securing (i) all or any portion of the
cost of exploration, drilling or development of such property, (ii) all or any
portion of the cost of acquiring, constructing, altering, improving or
repairing any property or assets, real or personal, or improvements used or to
be used in connection with such property or (iii) Indebtedness incurred by the
Company or any Restricted Subsidiary to provide funds for the activities set
forth in clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary
to the Company or to any other Restricted Subsidiary;
(d) Liens on the property of any Person existing at the time
such Person becomes a Subsidiary of the Company and not incurred as a result of
(or in connection with or in anticipation of) such Person becoming a Subsidiary
of the Company, provided that such Liens do not extend to or cover any property
or assets of the Company or any of its Subsidiaries other than the property so
acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or any
State thereof or any department, agency or instrumentality of either;
(f) any Lien on any asset securing Non-Recourse Indebtedness of
the Company or any Restricted Subsidiary;
(g) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted under
clauses (a) through (f) above, provided that such Lien extends to or covers
only the property that is subject to the Lien being extended, renewed or
replaced;
(h) any Ordinary Course Lien arising, but only so long as
continuing, in the ordinary course of business of the Company and the
Restricted Subsidiaries; or
(i) Liens (exclusive of any Lien of any type otherwise permitted
under clauses (a) through (h) above) securing Indebtedness of the Company or
any Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to clause (a)
of Section 1106 (exclusive of any such Sale/Leaseback Transactions otherwise
permitted under clauses (a) through (h) above), does not at the time such
Indebtedness is incurred exceed 10% of the Consolidated Net Worth of the
Company (as shown in the most recent audited consolidated balance sheet of the
Company and its Subsidiaries).
Notwithstanding the foregoing, nothing in this Section 1107 shall be
deemed to prohibit or otherwise limit the following types of transactions:
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(i) the sale, granting of Liens with respect to, or
other transfer of, crude oil, natural gas or other petroleum
hydrocarbons in place for a period of time until, or in an amount such
that, the transferee will realize therefrom a specified amount
(however determined) of money or of such crude oil, natural gas or
other petroleum hydrocarbons;
(ii) the sale or other transfer of any other interest in
property of the character commonly referred to as a production
payment, overriding royalty, forward sale or similar interest; or
(iii) the granting of Liens required by any contract or
statute in order to permit the Company or any Restricted Subsidiary to
perform any contract or subcontract made by it with or at the request
of the United States or any State thereof or of any foreign government
or any department, agency, organization or instrumentality thereof, or
to secure partial, progress, advance or other payments to the Company
or any Restricted Subsidiary by such governmental unit pursuant to
the provisions of any contract or statute.
SECTION 1108. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1109. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers thereof
and whether or not to the best of their knowledge, based upon such review, the
Company is in default in the performance, observance or fulfillment of any of
its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature
and status thereof. One of the officers signing the Officers' Certificate
delivered pursuant to this Section 1109 shall be the principal executive,
financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period or grace or requirement of notice provided under
this Indenture.
SECTION 1110. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1104 to 1108, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of
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all series affected by such omission (acting as one class) shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant, or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition
shall remain in full force and effect.
SECTION 1111. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. 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.
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SECTION 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. 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 1203. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method 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 or of the principal
amount of global Securities of such 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 1204. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
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;
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(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such
is the case;
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto maturing
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished;
(8) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such Redemption
Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made; and
(9) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1205. Deposit of Redemption Price.
On or before 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 1103) 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, and any Additional
Amounts with respect to, all the Securities which are to be redeemed on that
date.
SECTION 1206. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that all payments on Bearer Securities
shall be made only in the manner provided in Section 1102 for payments on
Bearer Securities; and provided further, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts with respect
thereto) represented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1102) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1207. Securities Redeemed in Part.
Any Registered 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 Registered Security or Securities of the
same series and Stated Maturity, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1208. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of Bearer Securities
or coupons appertaining thereto by the Company or any Affiliate of the Company
may be made only outside the United States, and payments therefor may be made
only upon surrender of such Bearer Securities or coupons appertaining thereto
at a location outside the United States and only in the manner provided for
payments on Bearer Securities in Section 1102. Such acquisition shall not
operate as or be deemed for any purpose to be a redemption of the indebtedness
represented by such Securities or coupons appertaining thereto. Any Securities
or coupons appertaining thereto purchased or acquired by the Company may be
delivered to the Trustee and, upon such delivery, the indebtedness represented
thereby shall be deemed to be satisfied. Section 309 shall apply to all
Securities and coupons so delivered.
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ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. 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." Unless otherwise provided 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 1302. 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 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1303. 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 delivery of or by crediting Securities of that
series pursuant to Section 1302 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1203 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 1204. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1206 and 1207.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in Houston, Texas, in The Borough of Manhattan,
The City of New York, in London or in any other location, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in Houston, Texas, in The Borough
of Manhattan, The City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. Quorum Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to
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the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Subject to Section 1405(d), notice
of the reconvening of any adjourned meeting shall be given as provided in
Section 1402(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 1002, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 1002, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 1002, any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders
of Securities of such series and the coupons appertaining thereto, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be proved in
the manner specified in Section 105 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and
each proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or as a proxy.
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(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
UNION TEXAS PETROLEUM HOLDINGS, INC.
(CORPORATE SEAL) By:
______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
(CORPORATE SEAL) By:
______________________________
Name:
Title:
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STATE OF ____________ )
) ss:
COUNTY OF ___________ )
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 UNION TEXAS PETROLEUM HOLDINGS, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
________________________________________
Notary Public
(NOTARIAL SEAL)
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
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 THE FIRST NATIONAL BANK OF CHICAGO, 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 Public
(NOTARIAL SEAL)
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EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
UNION TEXAS PETROLEUM HOLDINGS, INC.
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986 as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf of non-U.S. person(s). As used in this paragraph
the term "U.S. person" has the meaning given to it by Regulation S under the
Act.
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
A-1
<PAGE> 85
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_____________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
1Dated:
NAME OF PERSON MAKING CERTIFICATION
By: ___________________________________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By: ___________________________________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
________________________
1 To be dated no earlier than the Certification Date.
A-2
<PAGE> 86
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
UNION TEXAS PETROLEUM HOLDINGS, INC.
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
_________________________, between Union Texas Petroleum Holdings, Inc. and The
First National Bank of Chicago, as of the date hereof, [ ] principal amount of
the above captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (A)
or (B), each such United States financial institution has certified, on its own
behalf or through its agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights
or collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
B-1
<PAGE> 87
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such
proceedings.
Dated:
(dated the Exchange Date or the
Interest Payment Date)
________________________________________
as operator of the
Euroclear System [Morgan
Guaranty Trust Company of New
York, Brussels Office]
or
[CEDEL S.A.]
By ___________________________________
B-2
<PAGE> 1
Exhibit 4.2
================================================================================
UNION TEXAS PETROLEUM HOLDINGS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
______________________
INDENTURE
DATED AS OF __________________,
_______________________
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dollar or $. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 102. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 105. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 115. Corporate Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 204. Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
iii
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<TABLE>
<S> <C>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . .
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 505. Trustee May enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . . .
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . .
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . .
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . .
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . .
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . .
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1108. Purchase of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1302. Circumstances Requiring Prior Payment of Senior Indebtedness . . . . . . . . . . . . . . . . . . .
SECTION 1303. Subrogation of Rights to Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . .
SECTION 1304. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1305. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1306. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1307. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1308. Reliance on Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . .
SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1311. Article Applicable to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
vi
<PAGE> 8
<TABLE>
<S> <C> <C>
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1404. Quorum Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . .
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
vii
<PAGE> 9
UNION TEXAS PETROLEUM HOLDINGS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ______________
_______________________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
--------------- -------------
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704, 1007
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
- ----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
viii
<PAGE> 10
INDENTURE, dated as of _______________, between UNION TEXAS PETROLEUM
HOLDINGS, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1330 Post Oak Boulevard, Houston, Texas 77056, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is principally administered being One First National Plaza,
Suite 0126, Chicago, IL 60670-0126.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
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 accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, 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 in the United States at the date of such
computation; and
(3) 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.
1
<PAGE> 11
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning specified
in Section 105.
"Additional Amounts" means any additional amounts that are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with respect
to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
2
<PAGE> 12
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in temporary or permanent
global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 204.
"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 or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A., or, if any time after the execution of this instrument,
Centrale de Livraison de Valeurs Mobilieres S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any series
(i) if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially
represented by a temporary global Security, the earlier of (A) the Exchange
Date with respect to Securities of such series and (B), if the first Interest
Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this 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 Depositary" has the meaning specified in Section 304.
3
<PAGE> 13
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order 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 Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee in
the City of Chicago, Illinois, at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
4
<PAGE> 14
"Holder", when used with respect to (i) any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register; (ii) a Bearer Security, means the bearer
thereof; any coupon, means the bearer thereof; a Guarantee, means the Holder of
the Security to which said Guarantee pertains.
"Indebtedness", as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that should be, in accordance with generally
accepted accounting principles, recorded as capital leases. All Indebtedness of
others guaranteed as to payment of principal by such Person or in effect
guaranteed by such Person through a contingent agreement to purchase such
Indebtedness shall for all purposes hereof be deemed to be Indebtedness of such
Person.
"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 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"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.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
5
<PAGE> 15
"Judgment Currency" has the meaning specified in Section 506.
"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.
"Officer" means the Chairman, the President, the Treasurer, any
Assistant Treasurer, Controller, Secretary, Assistant Secretary or any Vice
President of a Person.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, the Controller, the
Secretary or an Assistant Treasurer, Assistant Controller or Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act.
6
<PAGE> 16
"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 602.
"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
7
<PAGE> 17
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; 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, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, 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, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of 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 specified in
accordance with Section 301 subject to the provisions of Section 1002.
"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 or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen coupon appertains,
as the case may be.
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"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301, or, if not so specified, the last
day of the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of the calendar month or the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the first date of a calendar month, whether or not such day
shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"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.
"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 Indebtedness, either outstanding as of the
date of the Subordinated Indenture or issued subsequent to the date of the
Subordinated Indenture, unless such Indebtedness is either subordinated by its
terms in right of payment to any other Indebtedness of the Company or pari
passu with subordinated Indebtedness of any series, provided that the term
"Senior Indebtedness" shall not include (i) Indebtedness of the Company to any
Subsidiary for money borrowed or advanced from such Subsidiary or (ii) amounts
owed (except to banks and other financial institutions) for goods, materials
or services purchased in the ordinary course of business.
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<PAGE> 19
and other financial institutions) for goods, materials or services purchased in
the ordinary course of business.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning specified in Section 401.
"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."
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
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.
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"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent),
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 (including any covenants the
compliance with which constitutes a condition precedent), 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 Person 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;
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(3) a statement that, in the opinion of each such
Person, such Person has made such examination or investigation as is
necessary to enable such Person 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 Person, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(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 an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at a meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments and any such records.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are deliverable
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, 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
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<PAGE> 22
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote
or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation. If a record date is fixed,
those Persons who were Holders of Outstanding Registered Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section
107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
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<PAGE> 23
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. 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 Services Division 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 (a) in the case of Registered
Securities, 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, Attention: General
Counsel; and (b) in the case of Bearer Securities, at the address of
an office or agency located outside the United States maintained by
the Company in accordance with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (i) to Holders of Registered Securities if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice and (ii) to Holders of Bearer Securities if published
in an Authorized Newspaper in the City of New York and London or other capital
city in Western Europe and in such other city or cities as may be specified in
such Bearer Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice.
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 to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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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.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities (or any
coupon appertaining thereto) shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent and Security Registrar, and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON APPERTAINING THERETO)
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 114. 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
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<PAGE> 25
Indenture or of the Securities or coupons appertaining thereto) payment of
principal and interest (and premium and Additional Amounts, 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.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obligations of the
Company or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining thereto
shall be in substantially such form or forms (including temporary or permanent
global 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
or coupons appertaining thereto, as evidenced by their execution of the
Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the Board
Resolution establishing the form or forms of Securities or coupons appertaining
thereto of any series (or any such temporary global Security) shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
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<PAGE> 26
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By______________________________________
Authorized Signatory".
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security
or, in the case of a global Bearer Security, of Euroclear or CEDEL S.A., which
is produced to the Security Registrar by such Holder, Euroclear or CEDEL S.A.,
as the case may be.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form. Permanent global Securities will be
issued in definitive form.
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SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the contrary:
(a) At the discretion of the Company, any Registered Security may
be issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security". Upon such election, the Company shall execute, and the Trustee or an
Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series, (ii) are
registered in the name of the Depositary or its nominee, (iii) are delivered by
the Trustee or an Authenticating Agent to the Depositary or pursuant to the
Depositary's instructions and (iv) bear a legend in substantially the following
form (or such other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY
PAYMENT IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, [NOMINEE OF THE
DEPOSITARY], HAS AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and
delivered as provided in Section 303. Notwithstanding any other provision of
this Indenture, unless and until it is exchanged in whole or in part for
Registered Securities not issued in global form, a Book-Entry Security may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary, 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 or a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company or the
Trustee that it is unwilling or unable to continue as Depositary for any
Book-Entry Securities, the Company shall appoint a successor Depositary,
whereupon the retiring Depositary shall surrender or cause the surrender of its
Book-Entry Security or Securities to the Trustee. The Trustee shall promptly
notify the Company upon receipt of such notice. If a successor Depositary has
not been so appointed by the effective date of the resignation of the
Depositary, the Book-Entry Securities will be issued as Registered Securities
not issued in global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the Depositary. Upon receipt of
such notice, the Depositary shall promptly surrender or cause the surrender of
its Book-Entry Security or Securities to the Trustee. Concurrently therewith,
Registered Securities not
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issued in global form will be issued in an aggregate principal amount equal to
the principal amount of the Book-Entry Security or Securities theretofore held
by the Depositary.
Upon any exchange of Book-Entry Securities for Registered Securities
not issued in global form as set forth in this Section 204(c), such Book-Entry
Securities shall be cancelled by the Trustee, and Securities issued in exchange
for such Book-Entry Securities pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Book-Entry Securities, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee or any
Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the
Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws,
notwithstanding any notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no responsibility for
transmitting payments to, communication with, notifying, or otherwise dealing
with any beneficial owners of any Book-Entry Security. Neither the Company nor
the Trustee shall have any responsibility or obligations, legal or otherwise,
to the beneficial owners or to any other party including the Depositary, except
for the Holder of any Book-Entry Security, provided, however, notwithstanding
anything herein to the contrary, (i) for the purposes of determining whether
the requisite principal amount of Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver,
instruction or other action hereunder as of any date, the Trustee shall treat
any Person specified in a written statement of the Depositary with respect to
any Book-Entry Securities as the Holder of the principal amount of such
Securities set forth therein and (ii) nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
with respect to any Book-Entry Securities, or impair, as between a Depositary
and holders of beneficial interests in such Securities, the operation of
customary practices governing the exercise of the rights of the Depositary as
Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name
of a Depositary or its nominee, all payments of the principal of (and premium,
if any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book-Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
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,
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(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 Section 304, 305,
306, 906 or 1107);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form, as Book-Entry Securities or
otherwise, with or without coupons appertaining thereto and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable or the
method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(8) the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
must exercise any such option;
(9) 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 (whether
denominated in cash, securities or otherwise) 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;
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<PAGE> 30
(10) the denomination in which any Registered Securities
of that series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denomination in
which any Bearer Securities of that series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series shall be payable if other than the currency
of the United States of America;
(12) if the principal of (and premium, if any) or
interest on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or
currencies (including composite currencies) other than that in which
the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of
(and premium, if any) and interest on, and any Additional Amounts with
respect to, Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) if the amount of payments of principal of (and
premium, if any), any interest on and any Additional Amounts with
respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, or values, rates
or prices, the manner in which such amounts shall be determined;
(14) 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;
(15) any additional means of satisfaction and discharge
of this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to
the Events of Default set forth in Section 501 or covenants of the
Company set forth in Article Ten pertaining to the Securities of the
series; and
(17) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except in the
case of Registered Securities, as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to above and
(subject to Section 303) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Registered Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Security Register.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
together with such Board Resolution 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 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 Registered
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of such series denominated in Dollars shall be issuable in the
denominations of $5,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, 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, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chairman of the Board, President,
Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary global security in bearer form delivered as provided in Section 304)
be delivered outside the United States in connection with its original issuance
and only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A to this Indenture,
or in such other form of certificate as shall contain information then required
by federal income tax laws and, if applicable,
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<PAGE> 32
federal securities laws, dated no earlier than the Certification Date. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations) of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to 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, together with any coupons
appertaining thereto, 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 legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other laws relating to
or affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
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 Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel)
stating that such
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Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons appertaining thereto or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form. A temporary Bearer Security shall
be delivered only in compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without 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 (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of 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; provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global Bearer
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of Euroclear and CEDEL S.A. for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security,
executed by the Company. On or after the Exchange Date such temporary global
Bearer Security shall be surrendered by the Common Depositary to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities of that series without charge and
the Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Bearer Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary global Bearer Security to be
exchanged; provided, however, that unless otherwise specified in such temporary
global Bearer Security, no such definitive Securities
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shall be delivered unless, upon such presentation by the Common Depositary,
such temporary global Bearer Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of
such temporary global Bearer Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by
CEDEL S.A. as to the portion of such temporary global Bearer Security held for
its account then to be exchanged, each in the form set forth in Exhibit B to
this Indenture. The definitive Securities to be delivered in exchange for any
such temporary global Bearer Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and if any
combination thereof is so specified, as requested by the beneficial owner
thereof.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
Euroclear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL S.A. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Bearer Security shall be
delivered only outside the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to Euroclear and
CEDEL S.A. on such Interest Payment Date upon delivery by Euroclear and CEDEL
S.A. to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A to this
Indenture. Any interest so received by Euroclear or CEDEL S.A. and not paid as
herein provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1002 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
Registered Securities and of transfers of Registered
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Securities of such series. 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 Registered 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
Registered Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
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. A Holder of
Registered Securities cannot have Bearer Securities issued in exchange for such
Registered Securities.
At the option of the Holder of Bearer Securities of any series, such
Bearer Securities may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive from the Company the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial
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<PAGE> 36
owners of interests in a permanent global Security are entitled to exchange
such interest for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified as
contemplated by Section 301, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series
in an aggregate principal amount equal to the principal amount of such
permanent global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered from time to time in accordance with instructions
given to the Trustee and the Common Depositary (which instructions shall be in
writing but need not comply with Section 103 or be accompanied by an Opinion of
Counsel) by the Common Depositary or such other depositary or Common Depositary
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or in part,
for definitive Securities of the same series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such permanent
global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series
is to be redeemed and ending on the relevant Redemption Date; and provided,
further, that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such permanent global Security shall be returned by the Trustee to the Common
Depositary or such other depositary or Common Depositary referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date; or proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made 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
exchange pursuant to Section 304, 906 or 1107 not involving any transfer.
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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 such series selected for redemption and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 902, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee connected therewith).
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupons shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
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Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Interest on any Bearer Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the bearer of the applicable coupon appertaining to such Bearer
Security. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company (i) in the
case of Registered Securities, by check mailed or delivered to the address of
any Person entitled thereto as such address shall appear in the Security
Register, or (ii) in the case of Bearer Securities, except as otherwise
provided in Section 902, upon presentation and surrender of the appropriate
coupon appertaining thereto at an office or agency of the Company in a Place of
Payment located outside the United States or by transfer to an account
maintained by the payee with a bank located outside the United States.
Any interest on any Registered 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 Registered
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
Registered 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 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 Registered 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. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent
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to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Registered 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 Registered 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, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Registered 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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon 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 and coupons 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. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by
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the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order; provided that the Trustee
shall not be required to destroy such Securities.
In the case of any temporary global Bearer Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by Euroclear or
CEDEL S.A., have been duly presented to the Trustee for such Securities by
Euroclear or CEDEL S.A., as the case may be. Permanent global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 310. Computation of Interest.
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.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) with respect to all Outstanding Securities
of such series and any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, the Company has deposited
or caused to be deposited with the Trustee as trust funds, under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, for the purpose money or U.S. Government
Obligations maturing as to principal and interest in such amounts and
at such times as will, together with the income to accrue thereon,
without consideration of any reinvestment thereof, be sufficient to
pay and discharge the entire indebtedness on all Outstanding
Securities of such series and coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
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Stated Maturity or any Redemption Date contemplated by the penultimate
paragraph of this Section, as the case may be; or
(c) the Company has properly fulfilled such
other means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the Securities of
such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
(4) 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 with respect to the Outstanding
Securities of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(a)
have not been satisfied, and unless otherwise specified pursuant to
Section 301 for the Securities of such series, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain
or loss for United States federal income tax purposes as a result of
such deposit, satisfaction and discharge and will be subject to United
States federal income tax on the same amount and in the same manner
and at the same time as would have been the case if such deposit,
satisfaction and discharge had not occurred; and
(6) no default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, in so far as clause (5) or (6) of Section
501 is concerned, at any time in the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged, or
beneficial interests in a trust the corpus of which consists exclusively of
money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement referred to in subclause (B) of clause (1) of this Section
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
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and, except for a discharge pursuant to subclause (a) of clause (1) of this
Section, the obligations of the Company under Sections 305, 306, 404, 610(e),
701, 1001 and 1002 and the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons 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 and Additional Amounts for the payment of which
such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional conditions
specified pursuant to Sections 301 and 401(3) and except that the
opinion referred to in Section 401(5) shall state that it is based on
a ruling by the Internal Revenue Service or other change since the
date hereof under applicable federal income tax law) with respect to
all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) 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 discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on and any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
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), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities, or in the form of Security for such series:
(1) default in the payment of any interest or any
Additional Amounts upon any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 days (whether or not such payment shall be
prohibited by the provisions of Article Thirteen); or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity
(whether or not such payment shall be prohibited by the provisions of
Article Thirteen); or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series (whether or
not such payment shall be prohibited by the provisions of Article
Thirteen); 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 one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written
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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) 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 60 consecutive
days; or
(6) 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
(7) any default shall occur which results in the
acceleration of the maturity of any Indebtedness of the Company (other
than the Securities or any Non-Recourse Indebtedness) having an
outstanding principal amount of $20 million or more individually or,
taken together with all other such Indebtedness that has been so
accelerated, in the aggregate.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of
the Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"),
as such Exchange Rate is certified for customs purposes by the Federal Reserve
Bank of New York on the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made
under such circumstances in Dollars where the required payment is in a currency
other than Dollars will not constitute an Event of Default under this
Indenture.
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Promptly after the occurrence of a Conversion Event, the Company shall
give written notice thereof to the Trustee; and the Trustee, promptly after
receipt of such notice, shall give notice thereof in the manner provided in
Section 106 to the Holders. Promptly after the making of any payment in
Dollars as a result of a Conversion Event, the Company shall give notice in the
manner provided in Section 106 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any 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 (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following
sentence, in the case of other Events of Default) may declare the principal
amount (or, if any such Securities 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 the series affected by such default or all
series, as the case may be, 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. If an Event of Default described in clause (5) or
(6) of Section 501 shall occur, the principal amount of the Outstanding
Securities of all series ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) 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 (or
of all series, as the case may be), 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, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be) and any coupons appertaining
thereto,
(b) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as the case
may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield
to Maturity),
(c) to the extent that payment of such interest
is lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and
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(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 (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) 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, or any Additional Amounts with respect to, any Security
of any series and any coupons appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest
and Additional Amounts 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 and Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity), 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
and any related coupons 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.
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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 (or lesser amount
in the case of Original Issue Discount Securities) 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 (premium, if any), interest or Additional
Amounts) 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 (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities or any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies, or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder 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 proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons.
All rights of action and claim under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons 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
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of principal (or premium, if any), interest or any Additional Amounts, upon
presentation of the Securities, or coupons, or both as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities; and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons 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) an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(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
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
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(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 of 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 or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
or coupons 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.
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With respect to Securities of any series, the holders of a majority in
principal amount of the Outstanding Securities of such 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, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default,
provided that in each such case
(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 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, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a
default
(1) in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Ten cannot be modified or amended without the consent of
the Holder of each Outstanding Security 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
or coupon 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, or any Additional Amounts
with respect to, any Security or the payment of any coupon on or after the
Stated Maturity or Maturities expressed in such Security or coupon (or, in the
case of redemption, on or after the Redemption Date).
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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
with respect to the Securities of any series,
(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 with respect to the Securities of any series, 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 willful 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;
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(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 or of all 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 give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 106, 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, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment 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 determines 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 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
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, coupon, 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;
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(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, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
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Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
completion 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 reasonable 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, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
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(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of
any series the Indenture dated as of _____________________ between the Company
and the Trustee relating to the Company's senior debt securities, this
Indenture with respect to the Securities of any series other than that series
and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
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 and subject to supervision or examination by federal or
state authority. 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.
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 resigning 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 608(a)
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
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(2) the Trustee shall cease to be eligible under Section 709
and shall fail to resign after written request therefor by the Company
or by any such Holder of Securities, 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 such successor
Trustee or Trustees 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 Services Division.
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
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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 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.
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.
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The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, or in the
case of an Authenticating Agent with respect to Securities issuable as Bearer
Securities, under the laws of any country in which such Bearer Securities may
be offered, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
federal or state authority or authority of such country. 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 as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By ______________________________
as Authenticating Agent
By ______________________________
Authorized Signatory"
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the
Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, 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 relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
that series as of such dates, and
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(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, such list to be dated as of a date not more than 15
days prior to the time such list is furnished; provided, that so long as the
Trustee is the Security Registrar, the Company shall not be required to furnish
or cause to be furnished such a list to the Trustee.
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 of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series 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) Holders of Securities may communicate pursuant to the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of 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.
(a) Within 60 days after ________ of each year commencing with
the year 1994, the Trustee shall transmit by mail to Holders a brief report
dated as of such __________ that complies with Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the
names and addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the
two years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Security whose
name and address is preserved at the time by the Trustee, as provided
in Section 802(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 703 shall, at the time of its 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.
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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 (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer 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 and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all Additional Amounts, if
any) 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, if a
supplemental indenture is required in connection with such
transaction, 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 Person Substituted.
Upon any consolidation by the Company with or merger by 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 such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and any
coupons appertaining thereto (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or otherwise secure any series of the
Securities or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with
respect to all or any series of the Securities (and, if such Event of
Default is applicable to less than all series of Securities,
specifying the series to which such Event of Default is applicable);
or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; 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 adversely affected by such change in or elimination 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 supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Section 401; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
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(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 defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any
material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), 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 and any related
coupons under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon,
any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts (except as contemplated by Section 801(1)
and permitted by Section 901(1)), 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 or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
Additional Amounts with respect thereto 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
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such percentage or
to provide with respect to any particular series the right to
condition the effectiveness of any supplemental indenture as to that
series on the consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 301 without the
consent of any Holder) 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,
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however, that this clause shall not be deemed to require the comment
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates early 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, immunities or liabilities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series and any coupons appertaining
thereto 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 and any coupons appertaining thereto.
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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), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, on any
interest due on and Additional Amounts payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Bearer Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts with
respect to Bearer Securities of that series); provided however, that if the
Securities of that series are listed on the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Services Division of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts with
respect to Bearer Securities of that series) at the
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office of any Paying Agent for such series located outside the United States,
and the Company hereby appoints the Trustee as its office or agency to receive
such presentations, surrenders, notices and demands.
No payment of principal, premium or interest on, or Additional Amounts
with respect to, Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States, nor shall any payments be made in respect of Bearer Securities
or coupons appertaining thereto pursuant to the presentation to the Company or
its designated Paying Agents within the United States; provided, however, that,
if the Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any Additional Amounts payable on Securities of such series) shall be made at
the office of the Company's Paying Agent in The Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or Additional Amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 and any coupons appertaining thereto, it
will, on or before each due date of the principal of (and premium, if any) or
interest on or any Additional Amounts with respect to any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons appertaining thereto, the Company
will, on or before 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.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any Additional
Amounts with respect to Securities of that series in trust for
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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), interest
on or any Additional Amounts with respect to 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 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
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security and coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in The Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified herein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1004. 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.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the
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Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
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SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers thereof
and whether or not to the best of their knowledge, based upon such review, the
Company is in default in the performance, observance or fulfillment of any of
its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature
and status thereof. One of the officers signing the Officers' Certificate
delivered pursuant to this Section 1007 shall be the principal executive,
financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period or grace or requirement of notice provided under
this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of
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all series affected by such omission (acting as one class) shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant, or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition
shall remain in full force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
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.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. 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 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (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 or of the principal
amount of global Securities of such 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 in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
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;
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(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such
is the case;
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto maturing
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished;
(8) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such Redemption
Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made; and
(9) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 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, and any Additional
Amounts with respect to, all the Securities which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that all payments on Bearer Securities
shall be made only in the manner provided in Section 1002 for payments on
Bearer Securities; and provided further, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts with respect
thereto) represented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered 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 Registered Security or Securities of the
same series and Stated Maturity, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of Bearer Securities
or coupons appertaining thereto by the Company or any Affiliate of the Company
may be made only outside the United States, and payments therefor may be made
only upon surrender of such Bearer Securities or coupons appertaining thereto
at a location outside the United States and only in the manner provided for
payments on Bearer Securities in Section 1002. Such acquisition shall not
operate as or be deemed for any purpose to be a redemption of the indebtedness
represented by such Securities or coupons appertaining thereto. Any Securities
or coupons appertaining thereto purchased or acquired by the Company may be
delivered to the Trustee and, upon such delivery, the indebtedness represented
thereby shall be deemed to be satisfied. Section 309 shall apply to all
Securities and coupons so delivered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." Unless otherwise provided 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), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
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SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security or
coupon, 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 and the payment of any
coupon is hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1302. Circumstances Requiring Prior Payment of Senior
Indebtedness.
In the event of any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, 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 or coupons appertaining thereto are
entitled to receive any payment on account of principal of (or premium, if any)
or interest on the Securities or the payment of the coupons appertaining
thereto.
Unless otherwise provided in Section 301, no payment in respect of
Securities shall be made if, at the time of such payment, there exists a
default in payment of all or any portion of any Senior Indebtedness, and such
default shall not have been cured or waived in writing or the benefits of this
sentence waived in writing by or on behalf of the holders of such Senior
Indebtedness. In addition, unless otherwise provided in Section 301, during the
continuance of any Event of Default (other than a default referred to in the
immediately preceding sentence) with respect to any Senior Indebtedness
permitting the holders to accelerate the maturity thereof and upon written
notice thereof given to the Trustee, with a copy to the Company (the delivery
of which shall not affect the validity of the notice to the Trustee), by any
holder of such Senior Indebtedness or its representative, then, unless and
until such an Event of Default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the
principal of or interest on the Securities or to acquire any of the Securities
or on account of the redemption provisions for the Securities. Only one
payment blockage period under the immediately preceding sentence may be
commenced within any consecutive 365-day period with respect to the Securities.
No Event of Default which existed or was continuing on the date of the
commencement of any 180-day payment blockage period with respect to the Senior
Indebtedness initiating such payment blockage period shall be, or be made, the
basis for the commencement of a second payment blockage period by a Holder or
representative of such Senior Indebtedness whether or not within a period of
365 consecutive days unless such Event of Default shall have been cured or
waived for a period of not less than 90 consecutive days (and, in the case of
any such waiver, no payment shall be made by the Company to the holders of
Senior Indebtedness in connection with such waiver other than amounts due
pursuant to the terms of the Senior Indebtedness as in effect at the time of
such default).
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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, 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 addition, nothing in this Section shall prevent the Company from
making or the Trustee from receiving or applying any payment in connection with
the redemption of Securities if the first publication of notice of such
redemption (whether by mail or otherwise in accordance with this Indenture) has
been made, and the Trustee has received such payment from the Company, prior to
the occurrence of any of the contingencies specified in the first two
paragraphs of this Section.
SECTION 1303. Subrogation of Rights to Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities or coupons appertaining thereto 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, or the coupons appertaining
thereto, 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 coupons appertaining thereto or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Securities or coupons appertaining thereto or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities or coupons appertaining thereto, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1304. 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 or
coupons appertaining thereto, 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 or coupons appertaining
thereto is intended to or shall impair, as between the Company and the Holders
of the Securities or coupons appertaining thereto, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities or coupons appertaining thereto the principal of (and premium, if
any) and interest on the Securities or coupons appertaining thereto as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights against the Company of the
Holders of the Securities or coupons appertaining thereto 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 or coupon
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.
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SECTION 1305. Trustee to Effectuate Subordination.
Each Holder of a Security or coupon 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 1306. 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.
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 or coupons
appertaining thereto and without impairing or releasing the subordination
provided in this Article or the obligations of the Holders of the Securities or
coupons appertaining thereto to the holders of 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 1307. Notice to Trustee.
The Company shall give prompt written notice to the Trustee in the
form of an Officers' Certificate 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 or coupons appertaining thereto 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 or coupons appertaining thereto
pursuant to the provisions of this Article, unless and until 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 at least two Business Days prior to such payment date; 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
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held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, 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 1308. 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 or coupons appertaining thereto shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which a
dissolution, winding up or total or partial liquidation or reorganization of
the Company 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 the Securities or coupons appertaining
thereto, 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 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of the
Securities or coupons appertaining thereto 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.
SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 1311. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
70
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in Houston, Texas, in The Borough of Manhattan,
The City of New York, in London or in any other location, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in Houston, Texas, in The Borough
of Manhattan, The City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. Quorum Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to
71
<PAGE> 81
the adjournment of such adjourned meeting. Subject to Section 1405(d), notice
of the reconvening of any adjourned meeting shall be given as provided in
Section 1402(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders
of Securities of such series and the coupons appertaining thereto, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be proved in
the manner specified in Section 105 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and
each proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or as a proxy.
72
<PAGE> 82
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
73
<PAGE> 83
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.
UNION TEXAS PETROLEUM HOLDINGS, INC.
(CORPORATE SEAL) By: ______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
(CORPORATE SEAL) By: ______________________________
Name:
Title:
74
<PAGE> 84
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
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 UNION TEXAS PETROLEUM HOLDINGS, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
________________________________________
Notary Public
(NOTARIAL SEAL)
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
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 THE FIRST NATIONAL BANK OF CHICAGO, 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 Public
(NOTARIAL SEAL)
75
<PAGE> 85
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
UNION TEXAS PETROLEUM HOLDINGS, INC.
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986 as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf of non-U.S. person(s). As used in this paragraph
the term "U.S. person" has the meaning given to it by Regulation S under the
Act.
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
A-1
<PAGE> 86
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_____________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
1Dated:
NAME OF PERSON MAKING CERTIFICATION
By: ___________________________________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By: ___________________________________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
________________________
1 To be dated no earlier than the Certification Date.
A-2
<PAGE> 87
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
UNION TEXAS PETROLEUM HOLDINGS, INC.
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
_________________________, between Union Texas Petroleum Holdings, Inc. and The
First National Bank of Chicago, as of the date hereof, [ ] principal amount of
the above captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (A)
or (B), each such United States financial institution has certified, on its own
behalf or through its agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights
or collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
B-1
<PAGE> 88
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such
proceedings.
Dated:
(dated the Exchange Date or the
Interest Payment Date)
________________________________________
as operator of the Euroclear System
[Morgan Guaranty Trust Company of New
York, Brussels Office]
or
[CEDEL S.A.]
By _____________________________________
B-2
<PAGE> 1
Exhibit 5.1
[Letterhead of Andrews & Kurth L.L.P.]
May 24, 1994
Board of Directors
Union Texas Petroleum Holdings, Inc.
1330 Post Oak Boulevard
Houston, Texas 77056
Gentlemen:
In our capacity as special counsel to Union Texas Petroleum
Holdings, Inc., a Delaware corporation (the "Company"), we have acted as
counsel in connection with the Company's Registration Statement (No. 33-52683)
on Form S-3 (the "Registration Statement") relating to registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to $200,000,000 aggregate principal amount of debt securities of the Company to
be issued and sold by the Company from time to time pursuant to Rule 415 under
the Act (the "Debt Securities"), as may be guaranteed (the "Guarantees") from
time to time by certain of the Company's subsidiaries (the "Guarantors"). This
opinion is being furnished to you for filing as Exhibit 5.1 to the Registration
Statement.
As the basis for the opinion hereinafter expressed, we have
examined (i) the Company's Restated Articles of Incorporation and Bylaws, each
as amended to date, (ii) the form of Indenture to be executed by the Company
and The First National Bank of Chicago, as trustee, relating to senior Debt
Securities (the "Senior Debt Indenture"), (iii) the form of Indenture to be
executed by the Company and The First National Bank of Chicago, as trustee,
relating to subordinated Debt Securities (the "Subordinated Debt Indenture")
and (iv) the originals, or copies certified or otherwise identified, of
corporate records of the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as
a basis for the opinions hereinafter expressed. In such examination, we have
assumed the authenticity of all documents submitted to us as originals and the
conformity with the original documents of all documents submitted to us as
copies.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein:
1. With respect to Debt Securities and, if applicable, the
Guarantees thereof, to be issued under the Senior Debt Indenture, we are of the
opinion that, when (i) the Senior Debt Indenture has been duly authorized and
validly executed and delivered by the Company, the Guarantors, if any, named
therein, and the trustee, (ii) the Senior Debt Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended, (iii) the Board
of Directors of the Company (the "Board") has taken all necessary corporate
action to approve the issuance and terms of such Debt Securities, the terms of
the offering thereof and related matters and (iv) such Debt Securities have
been duly executed, authenticated, issued and delivered in accordance with the
provisions of the Senior Debt Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein, such Debt
Securities and, if applicable, the Guarantees thereof, will be legally issued
and will constitute valid and legally binding obligations of the Company, and,
if applicable, each of the Guarantors thereof,
<PAGE> 2
Union Texas Petroleum Holdings, Inc.
Page 2
subject to (x) any applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other law relating to or affecting
creditors' rights generally and (y) general principles of equity.
2. With respect to Debt Securities to be issued under the
Subordinated Debt Indenture, we are of the opinion that, when (i) the
Subordinated Debt Indenture has been duly authorized and validly executed and
delivered by the Company and the trustee, (ii) the Subordinated Debt Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended,
(iii) the Board has taken all necessary corporate action to approve the
issuance and terms of such Debt Securities, the terms of the offering thereof
and related matters and (iv) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions of the
Subordinated Debt Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein, such Debt
Securities will be legally issued and will constitute valid and legally binding
obligations of the Company, subject to (x) any applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other law
relating to or affecting creditors' rights generally and (y) general principles
of equity.
For the purposes of this opinion, we have assumed that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Securities and Exchange Commission describing
the Debt Securities offered thereby, (iii) all Debt Securities will be issued
and sold in compliance with applicable federal and state securities laws and in
the manner stated in the Registration Statement and the appropriate Prospectus
Supplement and (iv) a definitive purchase, underwriting or similar agreement
with respect to any Debt Securities offered will have been duly authorized and
validly executed and delivered by the Company and the other parties thereto.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Registration Statement.
Very truly yours,
Andrews & Kurth L.L.P.
425 Lexington Avenue
New York, New York 10017
152:203:450:560
<PAGE> 1
Exhibit 10.1
$350,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 13, 1994
among
UNION TEXAS PETROLEUM HOLDINGS, INC.
The BANKS Listed Herein
and
NATIONSBANK OF TEXAS, N.A.
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
as Co-Agents
THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.06 AND 9.03(B) OF THIS
AGREEMENT INCLUDE INDEMNIFICATION FROM THE CONSEQUENCES OF THE
NEGLIGENCE OF THE PERSONS INDEMNIFIED THEREBY TO THE EXTENT SET FORTH
THEREIN
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and
Determinations . . . . . . . . . . . . . . 26
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . 27
SECTION 1.04. Miscellaneous . . . . . . . . . . . . . . . 27
SECTION 1.05. Unimar. . . . . . . . . . . . . . . . . . . 28
SECTION 1.06. Ratings. . . . . . . . . . . . . . . . . . 28
ARTICLE II
THE CREDITS . . . . . . . . . . . 29
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . 29
SECTION 2.02. Notice of Committed Borrowings . . . . . . 29
SECTION 2.03. Money Market Borrowings . . . . . . . . . . 30
SECTION 2.04. Notice to Banks; Funding of Loans . . . . . 35
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . 36
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . 37
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . 37
SECTION 2.08. Fees . . . . . . . . . . . . . . . . . . . 40
SECTION 2.09. Optional Termination or Reduction
of Commitments . . . . . . . . . . . . . . 41
SECTION 2.10. Mandatory Termination or Reduction
of Commitments . . . . . . . . . . . . . . 41
SECTION 2.11. Optional Prepayments . . . . . . . . . . . 42
SECTION 2.12. General Provisions as to Payments . . . . . 42
SECTION 2.13. Funding Losses . . . . . . . . . . . . . . 43
SECTION 2.14. Computation of Interest and Fees . . . . . 44
SECTION 2.15. Chapter 15 . . . . . . . . . . . . . . . . 44
SECTION 2.16. Maximum Interest Rate . . . . . . . . . . . 44
SECTION 2.17. Taxes . . . . . . . . . . . . . . . . . . . 45
SECTION 2.18. Conversions . . . . . . . . . . . . . . . . 48
ARTICLE III
CONDITIONS . . . . . . . . . . . 49
SECTION 3.01. Initial Borrowing . . . . . . . . . . . . . 49
SECTION 3.02. All Borrowings . . . . . . . . . . . . . . 50
-i-
<PAGE> 3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . 51
SECTION 4.01. Corporate Existence and Power . . . . . . . 51
SECTION 4.02. Corporate and Governmental
Authorization; Contravention . . . . . . . 51
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . 52
SECTION 4.04. Information . . . . . . . . . . . . . . . . 52
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . 53
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . 53
SECTION 4.07. Environmental Matters . . . . . . . . . . . 53
SECTION 4.08. Subsidiaries . . . . . . . . . . . . . . . 54
SECTION 4.09. Ownership of Restricted
Subsidiaries . . . . . . . . . . . . . . . 54
SECTION 4.10. Title to Properties . . . . . . . . . . . . 54
SECTION 4.11. Taxes and Other Obligations . . . . . . . . 55
SECTION 4.12. Regulation U . . . . . . . . . . . . . . . 55
SECTION 4.13. Certain Obligations . . . . . . . . . . . . 55
SECTION 4.14. United Kingdom Assets . . . . . . . . . . . 55
ARTICLE V
COVENANTS . . . . . . . . . . . 56
SECTION 5.01. Information . . . . . . . . . . . . . . . . 56
SECTION 5.02. Affirmative Covenants . . . . . . . . . . . 61
SECTION 5.03. Primary Business . . . . . . . . . . . . . 62
SECTION 5.04. Insurance . . . . . . . . . . . . . . . . . 62
SECTION 5.05. Debt . . . . . . . . . . . . . . . . . . . 62
SECTION 5.06. Restricted Payments . . . . . . . . . . . . 62
SECTION 5.07. Negative Pledge . . . . . . . . . . . . . . 63
SECTION 5.08. Consolidations and Mergers . . . . . . . . 64
SECTION 5.09. Use of Proceeds . . . . . . . . . . . . . . 64
SECTION 5.10. Parties to Subsidiary Guaranty
Agreement . . . . . . . . . . . . . . . . . 65
SECTION 5.11. Restrictions on Dividends,
Intercompany Loans, or Investment . . . . . 65
SECTION 5.12. Loans and Advances . . . . . . . . . . . . 65
SECTION 5.13. Cross-Default . . . . . . . . . . . . . . . 65
SECTION 5.14. Subsidiaries . . . . . . . . . . . . . . . 66
SECTION 5.15. Adjusted Equity and Interest
Coverage . . . . . . . . . . . . . . . . . 67
SECTION 5.16. Excluded Subordinated Debt and
Preferred Stock . . . . . . . . . . . . . . 67
SECTION 5.17. Certain Obligations . . . . . . . . . . . . 67
SECTION 5.18. Restrictions on Asset Sales . . . . . . . . 67
SECTION 5.19. UTEK Guaranty . . . . . . . . . . . . . . . 68
SECTION 5.20. Conversion to Unrestricted
Subsidiary . . . . . . . . . . . . . . . . 68
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ARTICLE VI
DEFAULTS . . . . . . . . . . . . 68
SECTION 6.01. Events of Default . . . . . . . . . . . . . 68
SECTION 6.02. Notice of Default . . . . . . . . . . . . . 71
ARTICLE VII
THE AGENT . . . . . . . . . . . 72
SECTION 7.01. Appointment and Authorization . . . . . . . 72
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . 72
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . 72
SECTION 7.04. Consultation with Experts . . . . . . . . . 72
SECTION 7.05. Liability of Agent . . . . . . . . . . . . 72
SECTION 7.06. Indemnification . . . . . . . . . . . . . . 73
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . 73
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . 73
SECTION 7.09. Agent's Fees . . . . . . . . . . . . . . . 74
ARTICLE VIII
CHANGE IN CIRCUMSTANCES . . . . . . . . 74
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . 74
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . 75
SECTION 8.03. Increased Cost and Reduced Return . . . . . 76
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans . . . . . . . . . 78
SECTION 8.05. Substitution of Bank . . . . . . . . . . . 78
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . 79
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . 79
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . 79
SECTION 9.03. Expenses; Indemnification . . . . . . . . . 79
SECTION 9.04. Sharing of Set-Offs, Etc. . . . . . . . . . 81
SECTION 9.05. Amendments and Waivers . . . . . . . . . . 81
SECTION 9.06. Successors and Assigns . . . . . . . . . . 82
SECTION 9.07. Collateral . . . . . . . . . . . . . . . . 84
SECTION 9.08. Texas Law . . . . . . . . . . . . . . . . . 84
SECTION 9.09. CONSENT TO JURISDICTION . . . . . . . . . . 84
SECTION 9.10. Counterparts . . . . . . . . . . . . . . . 84
SECTION 9.11. WAIVER OF JURY TRIAL . . . . . . . . . . . 84
SECTION 9.12. COMPLETE AGREEMENT . . . . . . . . . . . . 85
SECTION 9.13. Liability of Co-Agents and
Arranger . . . . . . . . . . . . . . . . . 85
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<PAGE> 5
Schedule I - Commitment Reduction Schedule
Schedule II - Existing Subsidiaries
Schedule III - Existing Liens
Schedule IV - Existing Restrictions
Schedule V - Joint Venture Debt Agreements
Schedule VI - Outstanding Options
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Subsidiary Guaranty Agreement
Exhibit F - Opinion of General Counsel of the Company
Exhibit G - Opinion of Special Counsel for the Company
Exhibit H - Opinion of Special Counsel for the Agent
Exhibit I - Assignment and Assumption Agreement
Exhibits J-1 and J-2 - Forms of Local Counsel Opinions
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<PAGE> 6
AMENDED AND RESTATED CREDIT AGREEMENT
Amended and Restated Credit Agreement dated as of May 13, 1994
among Union Texas Petroleum Holdings, Inc., the Banks party hereto, NationsBank
of Texas, N.A., as Agent, and Bank of America National Trust and Savings
Association and Union Bank of Switzerland, Houston Agency, as Co-Agents.
The parties hereto agree as follows:
PRELIMINARY STATEMENTS
1. The Company, the Agent and the co-agents and lenders named
therein previously entered into a Credit Agreement dated as of August 31, 1992
(as previously amended, the "1992 Credit Agreement") pursuant to which the
Banks committed to make Loans (as such term is defined in the 1992 Credit
Agreement) to the Company on the terms and conditions set forth therein.
2. The Company has requested the Banks, the Agent and the
Co-Agents to further amend the 1992 Credit Agreement and, as so further
amended, to restate it in its entirety and the Banks, the Agent and the
Co-Agents have agreed to do so on the terms and conditions set forth herein.
3. The parties hereto have agreed to restate the 1992 Credit
Agreement in its entirety for clarity only, and this Amended and Restated
Credit Agreement constitutes for all purposes an amendment to the 1992 Credit
Agreement and not a new or substitute agreement and each reference to a Loan
herein or in any other document shall include each Loan made heretofore under
the 1992 Credit Agreement as well as each Loan made hereafter under this
Amended and Restated Credit Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.03.
<PAGE> 7
"Acceptable Engineer" means DeGolyer & MacNaughton or such
other independent engineering firm that is mutually acceptable to the Agent and
the Company.
"Additional Margin Increase Condition" exists at all times
during which any senior unsecured long-term debt of the Company is rated below
BBB- by S&P.
"Adjusted Equity" means the consolidated stockholders equity
of the Company and its Consolidated Subsidiaries, as determined on a
consolidated basis in accordance with generally accepted accounting principles,
adjusted to exclude (i) any cumulative foreign exchange translation
adjustments, (ii) any non-cash write-up or writedown of any assets of the
Company and its Consolidated Subsidiaries made after March 31, 1992 in
accordance with generally accepted accounting principles, and (iii) the non-
cash effect of the adoption of any change after March 31, 1992 required by
generally accepted accounting principles.
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form requested by the Agent
submitted to the Agent (with a copy to the Company) duly completed by such
Bank.
"Affiliate" means (i) any Person holding 5% or more of any
class of capital stock of the Company, and (ii) any Person (other than the
Company, a Subsidiary or a Partnership) directly or indirectly controlling,
controlled by or under common control with any Person described in clause (i).
As used in this definition of "Affiliate", the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agent" means NationsBank in its capacity as agent for the
Banks hereunder and any successor in such capacity.
"Agreement" means this Amended and Restated Credit Agreement
dated as of May 13, 1994 among the Company, the Banks, the Agent and the
Co-Agents, as amended from time to time in accordance with the terms hereof.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in
the case of its Money Market Loans, its Money Market Lending Office.
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<PAGE> 8
"Arranger" means NationsBanc Capital Markets, Inc.
"Asset Sale" means any sale, lease, transfer or other
disposition of any Restricted Asset by the Company or any Restricted
Subsidiary, whether such sale, lease, transfer or other disposition is direct
or indirect (such as by selling capital stock of the Subsidiary that owns such
Restricted Asset, but excluding sales of capital stock of the Company), other
than (i) farm- outs in the ordinary course of business of properties containing
substantially no proved reserves at the time of the farm-out, (ii) sales in the
ordinary course of business of Hydrocarbons after severance, (iii) sales,
transfers, leases or other dispositions of inventory and obsolete or surplus
equipment in the ordinary course of business, and (iv) sales, transfers, leases
or other dispositions to the Company or any Restricted Subsidiary if no Default
then exists or would result therefrom.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment" means an Assignment and Assumption Agreement in
substantially the form of Exhibit I hereto.
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Corporate Base Rate for such day and (ii) the sum of 1/2 of
1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan which bears interest
as provided in Section 2.07(a).
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrowing" has the meaning set forth in Section 1.03.
"Cash Interest Expense" means, for any period, the sum of (i)
the aggregate amount accrued during such period by the Company and its
Consolidated Subsidiaries for interest determined on a consolidated basis, but
excluding interest on Non- Recourse Debt and interest on Debt of Unrestricted
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<PAGE> 9
Subsidiaries to the extent such Debt does not constitute Debt of the Company or
any Restricted Subsidiary plus (ii) the aggregate amount paid during such
period by the Company and its Consolidated Subsidiaries for dividends on
Restricted Preferred Stock, determined on a consolidated basis.
"Co-Agents" means Bank of America National Trust and Savings
Association and Union Bank of Switzerland, Houston Agency in their capacities
as Co-Agents hereunder.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof (or, if such
Bank is an Assignee and its name is not set forth on the signature pages
hereof, the amount of its Commitment as set forth in the Assignment pursuant to
which it became a Bank), as such amount may be reduced from time to time
pursuant to Sections 2.09 and 2.10 or reduced or increased from time to time
pursuant to any Assignment to which it is a party.
"Commitment Reduction Date" means each date set forth in
Schedule I (or, if any such date is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case such Commitment Reduction Date shall
be the next preceding Euro-Dollar Business Day).
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01 and refers to a Base Rate Loan or a Euro-Dollar Loan (each of
which shall be a "Type" of Loan).
"Company" means Union Texas Petroleum Holdings, Inc., a
Delaware corporation.
"Company's 1993 Form 10-K" means the Company's annual report
on Form 10-K for 1993, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Consolidated Debt" means, at any date, an amount equal to (a)
the sum (without duplication) of (i) the aggregate amount of Debt (other than
Defeased Debt, Excluded Subordinated Debt not exceeding $100,000,000 and Debt
that would not constitute Debt of the Company or any of its Consolidated
Subsidiaries if clause (viii) were not included in the definition herein of
Debt) of the Company and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date, plus (ii) the Unimar Percentage at such
date of the aggregate Debt (other than Defeased Debt and Debt that
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<PAGE> 10
would not constitute Debt of Unimar or any of the Unimar Restricted
Subsidiaries if clause (viii) were not included in the definition herein of
Debt) of Unimar and the Unimar Restricted Subsidiaries, determined on a
consolidated basis as of such date, plus (iii) the Excess Letter of
Credit/Guarantee Amount at such date, minus (b) the sum (without duplication
and only to the extent that any of the following are included in the foregoing
clause (a)) at such date of (1) Debt of Unrestricted Subsidiaries to the extent
such Debt does not constitute Debt of the Company or any Restricted Subsidiary
plus (2) Non-Restricted Asset Non-Recourse Debt plus (3) Existing Pakistan
Non-Recourse Debt.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"Convert," "Conversion" and "Converted" each refers to (i) the
change of Committed Loans of one Type into Committed Loans of the other Type
pursuant to Section 2.18 or Article VIII, (ii) the continuation of all
Euro-Dollar Loans comprising the same Borrowing as such for an additional
Interest Period pursuant to Section 2.18, and (iii) an election to change,
pursuant to Section 2.18, the Interest Period applicable to all Euro-Dollar
Loans comprising the same Borrowing prior to the end of the Interest Period
then applicable thereto.
"Corporate Base Rate" means a fluctuating interest rate per
annum as shall be in effect from time to time equal to the rate of interest
publicly announced by NationsBank as its base rate, whether or not the Company
has notice thereof. Such rate is set by NationsBank as a general reference
rate of interest, taking into account such factors as NationsBank may deem
appropriate, it being understood that many of NationsBank's commercial or other
loans are priced in relation to such rate, that it is not necessarily the
lowest or best rate actually charged to any customer and that NationsBank may
make various commercial or other loans at rates of interest having no
relationship to such rate.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except accrued expenses, trade accounts payable and taxes
payable arising in the ordinary
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<PAGE> 11
course of business, (iv) the present value, determined in accordance with
generally accepted accounting principles, of the obligations of such Person to
make payments under capital leases, (v) all obligations of such Person which
shall have been outstanding for more than five days owed to a bank or other
Person in respect of amounts theretofore paid under a letter of credit or
similar instrument, (vi) all Debt of others secured by a Lien on any asset
owned by such Person whether or not such Debt is assumed by such Person (except
that Joint Venture Debt shall for purposes of this Agreement be deemed to be
Debt of Pertamina and not of the Company or a Subsidiary), (vii) all Restricted
Preferred Stock issued by such Person or as to which such Person is otherwise
liable, (viii) all Debt of others Guaranteed by such Person, to the extent of
such Guarantee, and (ix) all obligations of such Person which have been
outstanding for more than five days to pay any margin call (or similar
requirement) on any Derivative Transaction (excluding, in the case of the
Company and its Subsidiaries, such obligations not exceeding $5,000,000 in the
aggregate); provided that, neither Debt nor Guarantee includes (a) obligations
under leases other than capital leases and under bona fide Derivative
Transactions (except as provided in clause (ix) above) and obligations with
respect to take-or-pay payments theretofore received which remain subject to
cash settlement or make-up; (b) Debt of the Company or a Subsidiary owing to
the Company or a Subsidiary, except for Debt not eliminated in consolidation
pursuant to the proviso in Section 1.02; (c) obligations under the Indonesian
Participating Units; (d) any preferred stock that does not constitute
Restricted Preferred Stock; and (e) the existing agreements relating to Joint
Venture Debt set forth in the contracts described on Schedule V of the parties
thereto as to allocation of responsibility for damages caused by reason of an
act or failure to act by, or otherwise related to, any such party, or any
similar agreement hereafter entered into providing for a similar allocation of
liability in respect of similar actions or failures to act. The amount of Debt
attributable to any Restricted Preferred Stock shall be the maximum
consideration required to be paid upon the purchase, retirement, redemption,
exchange, or conversion of the portion thereof constituting Debt (such
consideration, if other than cash, to be valued at the fair market value
thereof), provided that, in computing such consideration there shall be
excluded (A) any consideration payable solely in common stock of the Company,
(B) dividends to the extent such dividends do not materially exceed the
generally prevailing market rate (at the time of issuance of such Restricted
Preferred Stock) on preferred stock of comparable risk and maturity; and (C)
any premium payable upon any such purchase, retirement,
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<PAGE> 12
redemption, exchange or conversion only as a result of the exercise by the
issuer of a call provision exercisable only at the option of the issuer, if
failure to exercise such option would not have an adverse effect on the Company
or any Subsidiary pursuant to the terms of any such Restricted Preferred Stock
or any documents related thereto.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Defeased Debt" means any Debt of the Company or any
Subsidiary (i) which has been defeased in accordance with the terms of the
applicable Debt instruments, (ii) which is deemed to be extinguished under
generally accepted accounting principles applicable to the Company or such
Subsidiary, and (iii) with respect to which the Agent has received a
certificate of an officer of the Company or such Subsidiary to the effect that
the requirements of clauses (i) and (ii) of this definition have been met as to
such Debt and such evidence, if any, in support of such certificate as the
Agent may reasonably request.
"Derivative Transactions" means foreign exchange transactions
and commodity, currency and interest rate swaps, floors, caps, collars, forward
sales, options, other similar transactions and combinations of the foregoing.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City, San Francisco
or Houston are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Company and the Agent.
"EBITDA" means, for any period, the sum of (i) the
consolidated net income of the Company and its Consolidated Subsidiaries for
such period before non-cash non-recurring items, gains or losses on
dispositions of assets and the cumulative effect of changes in accounting
principles plus (ii) to the extent included in the determination of such
income, the consolidated charges for such period for interest,
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<PAGE> 13
depreciation, depletion and amortization plus (or, if there is a benefit from
income taxes, minus) (iii) to the extent included in the determination of such
income, the amount of the provision for or benefit from income taxes; provided
that in determining such consolidated net income, such consolidated charges and
such provision for or benefit from income taxes, there shall be excluded
therefrom (to the extent otherwise included therein) (a) the net income (or
loss) of, charges for interest, depreciation, depletion and amortization of,
and such provision for or benefit from income taxes of, any Person acquired by
the Company or a Subsidiary in a pooling-of-interest transaction for any period
prior to the date of such transaction, and (b) the net income (but not loss)
of, charges for interest, depreciation, depletion and amortization of, and such
provision for (but not benefit from) income taxes of, any Person which is
subject to any contractual restriction which prevents the payment of dividends
or the making of distributions on the capital stock or other ownership
interests of such Person to the extent of such contractual restrictions.
"Engineering Report" means a report of an Acceptable Engineer
providing an estimate of the proved reserves of Hydrocarbons attributable to
the properties of the Company and the Restricted Subsidiaries.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act, the Resource
Conservation and Recovery Act, the Oil Pollution Act, and their state analogs,
in each case as they have been or may be amended.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
-8-
<PAGE> 14
"ERISA Group" means the Obligors and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any Obligor, are
treated as a single employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan which bears interest
as provided in Section 2.07(b) or Section 2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Letter of Credit/Guarantee Amount" means, at any date,
the excess of (a) the sum of (i) the aggregate undrawn amount, at such date, of
all letters of credit as to which the Company or any Restricted Subsidiary
(other than Unimar and the Unimar Restricted Subsidiaries) is the account party
or in respect of which the Company or any Restricted Subsidiary (other than
Unimar and the Unimar Restricted Subsidiaries) has Guaranteed payment plus the
unpaid drawn portions, at such date, of all such letters of credit to the
extent such drawn portions do not constitute Debt of the Company or a
Restricted Subsidiary (other than Unimar and the Unimar Restricted
Subsidiaries), plus (ii) the Unimar Percentage of the aggregate undrawn amount,
at such date, of all letters of credit as to which Unimar or any of the Unimar
Restricted Subsidiaries is the account party or in respect of which Unimar or
any of the Unimar Restricted Subsidiaries has Guaranteed payment plus the
unpaid drawn portions, at such date, of such letters of credit to the extent
such drawn portions do not constitute Debt of Unimar or any of the Unimar
Restricted Subsidiaries, plus (iii) Debt that constitutes Debt of the Company
or any Restricted Subsidiary (other than Unimar or any Unimar Restricted
Subsidiary) pursuant to clause (viii) of the definition herein of Debt, plus
(iv) the Unimar Percentage at such date of Debt that constitutes Debt of
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<PAGE> 15
Unimar or any of the Unimar Restricted Subsidiaries pursuant to clause (viii)
of the definition herein of Debt, over (b) $50,000,000.
"Excess Net Sales Proceeds" means
(i) with respect to any Asset Sale involving, directly or
indirectly, a UK Asset (a "UK Asset Sale"),
(a) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all UK Asset Sales
since December 31, 1993 would be less than or equal
to $50,000,000 and the aggregate Net Sales Proceeds
from all Asset Sales since such date would be less
than or equal to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all UK Asset Sales
since December 31, 1993 ("UK Aggregate Amount") would
be greater than $50,000,000 or the aggregate Net
Sales Proceeds from all Asset Sales since such date
("Total Aggregate Amount") would be greater than
$100,000,000, the lesser of (1) the greater of the
amount by which the UK Aggregate Amount exceeds
$50,000,000 or the amount by which the Total
Aggregate Amount exceeds $100,000,000 or (2) the Net
Sales Proceeds from such Asset Sale; and
(ii) with respect to any Asset Sale not involving, directly or
indirectly, a UK Asset,
(a) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all Asset Sales
since December 31, 1993 would be less than or equal
to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all Asset Sales
since December 31, 1993 would be greater than
$100,000,000, the lesser of (1) the amount by which
such aggregate Net Sales Proceeds exceeds
$100,000,000 or (2) the Net Sales Proceeds from such
Asset Sale.
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<PAGE> 16
"Excluded Subordinated Debt" means Debt that (i) is
subordinate and junior, on terms reasonably satisfactory to the Agent, to the
Loans in all respects and (ii) has no requirement, absent a default under such
Debt, that any principal thereof be paid, purchased, redeemed, defeased,
acquired, exchanged or converted (other than exchange for or conversion to
common stock of the Company) prior to April 30, 1999.
"Existing Pakistan Non-Recourse Debt" means the Debt, not
exceeding the principal amount of $9,500,000, evidenced by that certain
promissory note dated December 20, 1988, issued by UT Pakistan in the original
principal amount of $21,250,000, the related Finance Agreement between UT
Pakistan and the Overseas Private Investment Corporation ("OPIC") and the
related Issuing and Paying Agency Agreement among Morgan Guaranty Trust Company
of New York as issuing and paying agent, OPIC and UT Pakistan.
"Fair Market Value" means with respect to any asset of the
Company or any Subsidiary at any date the open market cash purchase price that
an informed and willing purchaser would pay for such asset in an arm's length
transaction to a willing and informed owner under no compulsion to sell, all as
reasonably determined in good faith by the Company.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day, as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to NationsBank on such
day on such transactions as determined by the Agent.
"Financing Documents" means this Agreement, the Notes and the
Subsidiary Guaranty Agreement.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest pursuant to Section
8.01(a)) or any combination of the foregoing.
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"Guarantee" by any Person means any obligation, contingent or
otherwise (including, without limitation, any obligation to repay to a payor or
creditor of a payor amounts previously paid to such Person by such payor), of
such Person directly or indirectly guaranteeing any Debt of any other Person or
otherwise incurred for the purpose of assuring the holder of payment of any
such Debt; provided that (i) the obligations of any Person in respect of Debt
of any Partnership in which such Person is a general partner shall not
constitute a Guarantee of such Debt so long as substantially all assets of such
Person are comprised of its Investment in such Partnership, (ii) the obligation
of a Person to transfer or restore cash to the account of a Partnership,
Subsidiary or Affiliate pursuant to periodic settlements or adjustments under
cash management practices of such Persons shall not constitute a Guarantee,
(iii) the contractual obligation of a Person to assure that a Subsidiary,
Partnership or Affiliate conducts its operations as a prudent operator shall
not constitute a Guarantee of indebtedness of the Subsidiary, Partnership or
Affiliate, (iv) the obligation of a Person to cause net amounts of cash owned
by a Subsidiary, Partnership or Affiliate to be applied to payment of
indebtedness of such Subsidiary, Partnership or Affiliate shall not constitute
a Guarantee of such indebtedness and (v) the reaffirmation to or for the
benefit of a lender of contractual obligations (as, for example, those set
forth in the Production Sharing Contracts) previously entered into in good
faith and not in contemplation of the incurrence of Debt shall not constitute a
Guarantee so long as the other arrangements entered into in connection with
such reaffirmation do not increase the likelihood that additional funds will be
required to meet such obligations (as would be the case, for example, if
revenues otherwise available to meet such obligations were dedicated to such
lender).
"HPG Plant" means the five-twelfths interest in the Geismar,
Louisiana olefins plant owned by UTPC and its subsidiaries, the supply and
distribution assets related to such plant and all other operating assets of
UTPC and its subsidiaries as of December 31, 1993.
"Hydrocarbons" means crude oil, including all kinds of
hydrocarbons and bitumens in solid or liquid form, and natural gas, including
all gaseous hydrocarbons produced from wells, and liquefied natural gas and
liquefied petroleum gases.
"Indonesian Participating Units" means the Indonesian
Participating Units issued by Unimar pursuant to
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the Indenture dated as of September 24, 1984 between Unimar and Irving Trust
Company, Trustee, as amended and in effect on the date hereof, and as hereafter
amended to the extent such subsequent amendments do not change the term
thereof, provide additional security therefor, or increase the payments to be
made to holders thereof.
"Interest Period" means: (1) with respect to each Euro-Dollar
Loan comprising part of the same Borrowing, the period commencing on the date
of such Loan or the date of the Conversion of any Base Rate Loan into such
Euro-Dollar Loan and ending on the last day of the period selected by the
Company pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
(or on any other date selected by the Company pursuant to Section 2.18) and
ending on the last day of the period selected by the Company pursuant to the
provisions below and Section 2.18. The duration of each such Interest Period
shall be 1, 2, 3 or 6 months or (subject to Section 2.02(b)) 9 or 12 months, in
each case as the Company may, upon notice received by the Agent not later than
10:00 a.m. (Houston time) on the third Euro-Dollar Business Day prior to the
first day of such Interest Period, select; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall, subject to clause (c) below, end
on the last Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a
payment of principal of the Loans is required to be made under Section
2.10(c) but does not end on such date, then (i) the principal amount
(if any) of each Euro-Dollar Loan required to be repaid on such date
shall have an Interest Period ending on such date and (ii) the
remainder (if any)
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of each such Euro-Dollar Loan shall have an Interest Period determined
as set forth above; and
(d) Interest Periods for all Loans comprising the same
Borrowing shall commence on the same date and shall be of the same
duration.
(2) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter as
the Company may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall, subject to clause (d) below, end
on the last Euro-Dollar Business Day of a calendar month;
(c) no Interest Period for any Money Market Loan shall
end after any Commitment Reduction Date if, after giving effect
thereto, the aggregate principal amount of Loans having Interest
Periods ending after such date would exceed the aggregate amount of
the Commitments after giving effect to any scheduled reduction of the
Commitments on or prior to such date; and
(d) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date.
(3) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 14 days) as the Company may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business
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<PAGE> 20
Day shall be extended to the next succeeding Euro-Dollar Business Day;
(b) no Interest Period for any Money Market Loan shall
end after any Commitment Reduction Date if, after giving effect
thereto, the aggregate principal amount of Loans having Interest
Periods ending after such date would exceed the aggregate amount of
the Commitments after giving effect to any scheduled reduction of the
Commitments on or prior to such date; and
(c) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, advance, Guarantee or
otherwise. It is understood that a joint operating agreement or similar
arrangement with respect to Hydrocarbon properties or the HPG Plant does not
constitute a Person and hence that payments in respect of the acquisition or
maintenance of an interest in such Hydrocarbon properties or the HPG Plant do
not constitute an Investment.
"Invitation for Money Market Quotes" has the meaning set forth
in Section 2.03(c).
"Joint Venture Debt" means obligations secured by a Lien on
the interests of the Company or a Subsidiary, as the case may be, arising under
either of the Production Sharing Contracts or any related supply contracts, if
such Lien covers ratably the interests of Pertamina and all production sharing
contractors thereunder.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset (including, without limitation, any production payment, advance payment
or similar arrangement with respect to minerals in place), whether or not
filed, recorded or otherwise perfected under applicable law. For the purposes
of this Agreement, the
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<PAGE> 21
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset. The right of set-off, whether by operation
of law or by contract, does not constitute a Lien unless there is a related
obligation to maintain a deposit of cash or other assets in respect of which
such right of set-off may be exercised.
"Loan" means a Committed Loan or a Money Market Loan and
"Loans" means Committed Loans or Money Market Loans or any combination of the
foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"Margin Increase Condition" exists at all times during any
Margin Period if the aggregate outstanding amount of Consolidated Debt on the
last day of the calendar quarter immediately preceding the first day of such
Margin Period exceeded 300% of Operating Cash Flow for the four calendar
quarter period ending on the last day of such calendar quarter.
"Margin Period" means each period commencing on and including
the 61st day of each calendar quarter and ending on and including the 60th day
of the next calendar quarter, with the first such period commencing on May 31,
1994.
"material" means, with respect to any matter so characterized
herein, that such matter would reasonably be expected to be significant to a
Bank in determining whether to enter into this Agreement or to extend credit
hereunder.
"Material Debt" means Debt of the Company and/or any one or
more Restricted Subsidiaries (other than Non-Recourse Debt) in an aggregate
principal amount equal to or greater than $15,000,000, whether incurred under
one or more related or unrelated documents or instruments.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $15,000,000.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
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<PAGE> 22
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Company and the Agent; provided that any Bank may from time to time by
notice to the Company and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank shall be deemed to refer to either
or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest pursuant to
Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Money Market Quote Request" has the meaning set forth in
Section 2.03(a).
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"NationsBank" means NationsBank of Texas, N.A., a national
banking association.
"Net Sales Proceeds" means, with respect to any Asset Sale,
the Fair Market Value of the Restricted Asset that is sold, leased, transferred
or otherwise disposed of in such Asset Sale, minus the sum of (i) all
reasonable fees, commissions and expenses incurred by the Company or any
Subsidiary as a result of or in connection with such Asset
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<PAGE> 23
Sale and (ii) all taxes required to be paid by the Company or any Subsidiary as
a result of such Asset Sale.
"1992 Credit Agreement" has the meaning set forth in the
preliminary statements set forth before this Section 1.01.
"Non-Recourse Debt" means, at any date, (a) the aggregate
amount at such date of Debt of the Company or a Subsidiary (other than Unimar
and each Unimar Subsidiary) and (b) the Unimar Percentage of the aggregate
amount at such date of all Debt of each of Unimar and each Unimar Subsidiary,
in respect of which in the case of either (a) or (b) (i) the recourse of the
holder of such Debt, whether direct or indirect and whether contingent or
otherwise, shall be effectively limited to Non-Restricted Assets (or, in the
case of the Existing Pakistan Non-Recourse Debt, the assets described in
Schedule III) and (ii) in the case of any such Debt incurred after the date of
this Agreement, the Company shall have, at or prior to the time of incurrence
thereof, notified the Agent of such incurrence and delivered to the Agent a
certificate of an officer of the Company certifying that such Debt constitutes
Non-Recourse Debt (or that such Debt will be converted into Non-Recourse Debt
at some specified time or upon the occurrence of some specified event),
provided that, if any such Debt is secured by any interest in a license,
concession, production sharing contract or other right and any of the
Restricted Assets consists of an interest in such license, concession,
production sharing contract or other right, then the agreements evidencing such
Debt must provide that default under such Debt will not impair or affect such
license, concession, production sharing contract or other right. In the case
of any Non-Recourse Debt incurred after the date of this Agreement, such
limitation on recourse (i) must be set forth in the instrument evidencing such
Debt, and (ii) must be on terms acceptable to the Agent as evidenced by the
written approval thereof by the Agent (which approval will not be unreasonably
withheld, and in deciding whether to approve such terms the Agent will, if
requested by the Company, take into account what terms are usual and customary
in non-recourse financings) and in any event must provide that the holder of
such Debt waives, to the extent such holder may effectively do so, such
holder's right to elect recourse treatment under 11 U.S.C. Section 1111(b)
unless such holder obtains the prior written consent of the Required Banks.
For avoidance of doubt, (a) if any such Debt is Guaranteed by the Company or a
Restricted Subsidiary in a limited amount, the excess over such amount (but
only the excess) constitutes Non-Recourse Debt, and (b) Debt shall not be
determined to not be Non-Recourse Debt solely as a result
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<PAGE> 24
of the existence of either of the following: (i) an agreement by a direct or
indirect parent corporation to repay to a subsidiary amounts received by such
parent corporation from such subsidiary in the event such subsidiary has a need
for such amounts in future periods or (ii) an agreement by a direct or indirect
parent corporation to cause a subsidiary to comply with such subsidiary's
contractual obligations so long as the parent corporation is not obligated to
contribute funds to the subsidiary to enable it to comply with such contractual
obligations and has not otherwise Guaranteed such obligations.
"Non-Restricted Asset Non-Recourse Debt" means, at any date,
the aggregate amount at such date of Non-Recourse Debt as to which the recourse
of the holder is limited exclusively to Non-Restricted Assets as contemplated
by clause (i) of the first sentence of the definition of Non-Recourse Debt.
"Non-Restricted Assets" means all assets of the Company and
its Subsidiaries other than Restricted Assets.
"Non-UK Asset" means any Restricted Asset other than a UK
Asset.
"Notes" means promissory notes of the Company, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Company to
repay the Loans made to it, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing
(as defined in Section 2.02) or a Notice of Money Market Borrowing (as defined
in Section 2.03(f)).
"Obligors" means the Company and the Required Guarantors, and
"Obligor" means any one of them.
"Operating Cash Flow" means, with respect to any period, an
amount equal to
(i) the "net cash (required) provided by operating activities
before changes in other assets and liabilities" of the Company
and its Consolidated Subsidiaries for such period, that should
be reflected in the consolidated statement of cash flows of
the Company and its Consolidated Subsidiaries for such period
prepared in accordance with generally accepted accounting
principles on substantially the same basis as the consolidated
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<PAGE> 25
statement of cash flows of the Company and its Consolidated
Subsidiaries for the year ended December 31, 1993 as set forth
in the Company's 1993 Form 10-K, provided that in determining
such "net cash (required) provided by operating activities
before changes in other assets and liabilities" there shall be
excluded therefrom (to the extent otherwise included therein)
(a) the portion of such net cash provided by assets securing
any Non-Recourse Debt other than the Existing Pakistan
Non-Recourse Debt, (b) the net cash provided or required by
operating activities before changes in other assets and
liabilities of any Person acquired by the Company or a
Subsidiary in a pooling-of-interest transaction for any period
prior to the date of such transaction, and (c) the net cash
provided by operating activities before changes in other
assets and liabilities of any Person which is subject to any
contractual restriction which prevents the payment of
dividends or the making of distributions on the capital stock
or other ownership interests of such Person to the extent of
such contractual restrictions,
plus (ii) to the extent included in the determination of the
"net cash (required) provided by operating activities before
changes in other assets and liabilities" for such period in
accordance with the foregoing clause (i), exploration expenses
incurred by the Company or any Consolidated Subsidiary during
such period other than (a) exploration expenses incurred in
connection with assets securing any Non-Recourse Debt other
than the Existing Pakistan Non-Recourse Debt, (b) the
exploration expenses of any Person acquired by the Company or
a Subsidiary in a pooling-of-interest transaction for any
period prior to the date of such transaction, and (c) the
exploration expenses of any Person which is subject to any
contractual restriction which prevents the payment of
dividends or the making of distributions on the capital stock
or other ownership interests of such Person to the extent of
such contractual restrictions,
plus (or, if cash is required by equity investee, minus) (iii)
the amount of the "cash (required) provided by equity
investee" of the Company and its Consolidated Subsidiaries for
such period, that
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should be reflected in the consolidated statement of cash
flows of the Company and its Consolidated Subsidiaries for
such period prepared in accordance with generally accepted
accounting principles on substantially the same basis as the
consolidated statement of cash flows of the Company and its
Consolidated Subsidiaries for the year ended December 31, 1993
as set forth in the Company's 1993 Form 10-K, excluding the
effect of any cash required by such equity investee for the
payment of the principal of its Debt and any cash provided by
such equity investee from incurrence of its Debt,
minus (iv) dividends on preferred stock paid during such
period by the Company or any Consolidated Subsidiary,
determined on a consolidated basis.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"Partnership" means any general or limited partnership which
is accounted for on the equity method in the Company's consolidated financial
statements and in which the Company or a Subsidiary is a general partner.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
It is understood that a joint operating agreement or similar arrangement with
respect to Hydrocarbon properties or the HPG Plant does not constitute a
Person.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such
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time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Production Sharing Contracts" means the production sharing
contracts pertaining to certain operations in Indonesia filed as Exhibits
10.102 and 10.103 to the Company's quarterly report on Form 10-Q for the
quarter ending June 30, 1990, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Reference Banks" means the principal London offices of
NationsBank, Bank of America National Trust and Savings Association and Union
Bank of Switzerland and such substitute Bank or Banks as may be mutually agreed
to by the Company and the Agent, and "Reference Bank" means any one of such
Reference Banks.
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Required Guarantors" means (a) each of Union Texas Petroleum
Energy Corporation, UTPC, Union Texas East Kalimantan Limited, Union Texas
International Corporation and Unistar, Inc. and (b) any Subsidiary that
acquires a Restricted Asset (other than any Restricted Asset in Pakistan or, if
such Subsidiary's entering into the Subsidiary Guaranty Agreement would have a
material adverse tax consequence on the Company, in the United Kingdom
(including the United Kingdom Sector of the North Sea)) after December 31, 1993
or the capital stock of any Required Guarantor after December 31, 1993. Each
Required Guarantor shall continue to be a Required Guarantor unless released
from its obligations under the Subsidiary Guaranty Agreement in accordance with
the terms of the Financing Documents.
"Restricted Assets" means (1) all proved reserves of the
Company and the Subsidiaries as of December 31, 1993 in Indonesia, the United
Kingdom (including the United Kingdom
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<PAGE> 28
Sector of the North Sea) and Pakistan, (2) all licenses, concessions,
production sharing contracts and other rights pertaining to any such proved
reserves (excluding the portion thereof that does not pertain to any of such
proved reserves, if such portion can be severed without material adverse
consequences on the portion pertaining to such proved reserves), (3) equipment
used in the production of any such proved reserves or in the transportation of
production from any such proved reserves if such equipment is a fixture or
otherwise attached to realty, constitutes all or a part of any pipeline or
related equipment, is all or part of a production platform or related equipment
or is equipment similar to any of the foregoing or used for a similar purpose,
and (4) the HPG Plant.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Company's capital stock (except dividends
payable solely in shares of its common stock), or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of the
Company's capital stock or (b) any option, warrant or other right to acquire
shares of the Company's capital stock (except any such payment made solely in
shares of its common stock); provided that payments of stock-related and other
employee benefits (including purchases by the Company of its common stock in
connection with the payment of such benefits) in the ordinary course of
business to employees of the Company or a Subsidiary shall not be deemed
Restricted Payments.
"Restricted Preferred Stock" means (i) all preferred stock
which (a) is subject to purchase, retirement, redemption, exchange or
conversion (other than exchange for or conversion to common stock of the
Company), in whole or in part under any circumstance whatsoever (other than
purchase, retirement, redemption, exchange or conversion by the issuer thereof,
at the sole option of such issuer, if failure to exercise such option would not
have an adverse effect on the Company or any Subsidiary pursuant to the terms
of any such preferred stock or any documents related thereto) and (b) provides
for dividends materially in excess of the generally prevailing market dividend
rate (at the time of issuance of such preferred stock) for preferred stock of
comparable risk and maturity, and (ii) the portion of all other preferred stock
which is subject to purchase, retirement, redemption, exchange or conversion
(other than exchange for or conversion to common stock of the Company) at any
date or dates on or prior to April 30, 1999 under any circumstance whatsoever
(other than purchase, retirement, redemption, exchange or conversion by the
issuer thereof, at the sole option of such
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<PAGE> 29
issuer, if failure to exercise such option would not have an adverse effect on
the Company or any Subsidiary pursuant to the terms of any such preferred stock
or any documents related thereto). For avoidance of doubt, to the extent that
any shares of Restricted Preferred Stock are exchanged for or converted to
common stock of the Company and as a consequence such shares of Restricted
Preferred Stock are cancelled, such shares shall no longer constitute
Restricted Preferred Stock.
"Restricted Subsidiaries Recourse Debt" means, at any date,
the sum of (a) the aggregate amount of all Debt (other than (i) Non-Recourse
Debt, (ii) any Guarantee of Debt of the Company (including the Loans) and (iii)
the amount, if any, by which the Guarantees of the Restricted Subsidiaries
(other than Unimar and the Unimar Restricted Subsidiaries) included in the
determination of Excess Letter of Credit/Guarantee Amount exceeds the Excess
Letter of Credit/Guarantee Amount) of each Restricted Subsidiary (other than
Unimar and the Unimar Restricted Subsidiaries), determined on a consolidated
basis as of such date, and (b) the Unimar Percentage of the aggregate amount of
all Debt (other than (i) Non-Recourse Debt, (ii) any Guarantee of Debt of the
Company and (iii) the amount, if any, by which the Unimar Percentage of the
Guarantees of Unimar and the Unimar Restricted Subsidiaries included in the
determination of Excess Letter of Credit/Guarantee Amount exceeds the Excess
Letter of Credit/Guarantee Amount) of Unimar and the Unimar Restricted
Subsidiaries, determined on a consolidated basis as of such date.
"Restricted Subsidiary" means each Person listed in Part B of
Schedule II hereto and each Subsidiary that owns directly or indirectly any
interest in any Restricted Assets or any Restricted Subsidiary; provided that a
Restricted Subsidiary shall cease to be such at such time as it is converted to
an Unrestricted Subsidiary pursuant to Section 5.20 or ceases to be a
Subsidiary as a result of a transaction permitted by Section 5.14.
"Restricted Transfer" means (i) any Investment in an
Affiliate, any Unrestricted Subsidiary or any subsidiary of an Unrestricted
Subsidiary, but excluding to the extent otherwise included in the foregoing,
Investments in Unimar and the Unimar Subsidiaries, or (ii) any payment by the
Company or any Subsidiary, directly or indirectly, in respect of Non-Recourse
Debt to the extent such Person is not legally obligated to make such payment by
the terms of such Debt, or solely in the case of Unimar, Unistar, Inc. or any
of the Unimar Subsidiaries, to the extent such Person is not legally
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<PAGE> 30
obligated to fund such payment under the terms of the Unimar Partnership
Agreement.
"Revolving Credit Period" means the period from and including
the date of this Agreement to but not including the Termination Date.
"S&P" means Standard & Poor's Corporation.
"Short-Term Credit Agreement" means the Credit Agreement dated
as of the date of this Agreement among the Company, the Agent, the Co-Agents
and the Banks providing a $200,000,000 credit facility to the Company.
"Subsidiary" means (a) Unimar and the Unimar Subsidiaries
(except at such times as the Company does not own, directly or indirectly, any
of the ownership interest in Unimar) and (b) any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Company, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a "majority" as used herein.
"Subsidiary Guarantors" means the Subsidiaries from time to
time parties to the Subsidiary Guaranty Agreement, and their respective
successors.
"Subsidiary Guaranty Agreement" means the Amended and Restated
Subsidiary Guaranty Agreement dated as of May 13, 1994 among the Subsidiary
Guarantors and NationsBank, as Agent, substantially in the form of Exhibit E
hereto, as the same may be amended from time to time in accordance with the
terms thereof.
"Termination Date" means April 30, 1998, or, if such day is
not a Euro-Dollar Business Day, the Termination Date shall be the next
preceding Euro-Dollar Business Day.
"Type" has the meaning specified in the definition of
Committed Loan.
"UK Assets" means all Restricted Assets of UTPL as of
December 31, 1993.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present
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<PAGE> 31
value of all benefits under such Plan as determined by such Plan's actuary
exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA if such Plan terminated as
of such date.
"Unimar" means Unimar Company, a partnership organized and
existing under the laws of Texas.
"Unimar Partnership Agreement" means the Amended and Restated
Agreement of General Partnership of Unimar dated as of September 11, 1990
between Unistar, Inc. and Ultrastar, Inc., as amended from time to time.
"Unimar Percentage" means, at any date, the aggregate
percentage ownership interest in Unimar owned at such date by the Company and
the Subsidiaries.
"Unimar Restricted Subsidiary" means any Unimar Subsidiary
that is also a Restricted Subsidiary at the relevant date.
"Unimar Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by Unimar, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a majority as used herein.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"UT Pakistan" means Union Texas Pakistan, Inc., a Delaware
corporation.
"UTPC" means Union Texas Products Corporation, a Delaware
corporation.
"UTPL" means Union Texas Petroleum Limited, an English company.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations
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hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis consistent with
the most recent audited consolidated financial statements of the Company and
its Consolidated Subsidiaries delivered to the Banks (except for changes
concurred in by the Company's independent public accountants); provided that in
any determination of Consolidated Debt if (i) the Company or any Restricted
Subsidiary owes any Debt to an Unrestricted Subsidiary which would otherwise be
eliminated in such determination of Consolidated Debt (the "intercompany Debt")
(other than Debt in an amount not exceeding $10,000,000 in the aggregate at any
time and representing advances by the Unrestricted Subsidiaries to the Company
or a Restricted Subsidiary made in the ordinary course of the cash management
practices of the Company and its Subsidiaries) and (ii) such Unrestricted
Subsidiary owes, at the date of determination, any Debt for borrowed money to a
Person other than the Company or a Subsidiary (the "third party Debt") (other
than any such Debt that also constitutes Debt of the Company or a Restricted
Subsidiary), then an amount equal to the lesser of (1) such intercompany Debt
and (2) such third party Debt, shall not be eliminated in such determination of
Consolidated Debt.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregate of Loans of one or more Banks to be made to the Company
pursuant to Article II on a single date and, if such Loans are Committed Loans,
of a single Type, and if such Loans are Fixed Rate Loans, for a single Interest
Period (except as contemplated by paragraph (1)(c) of the definition of
Interest Period). Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under Section 2.01 in
which all Banks participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing under Section 2.03 in which the Bank
participants are determined on the basis of their bids in accordance
therewith).
SECTION 1.04. Miscellaneous. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and
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Article, Section, Schedule and Exhibit references are to Articles and Sections
of and Schedules and Exhibits to this Agreement, unless otherwise specified.
The term "including" as used herein means "including without limitation".
Definitions of terms defined herein shall be applicable to both the singular
and plural forms of the terms defined as appropriate. References to "directly
or indirectly" in respect of ownership of any interest in any assets shall
include, without limitation, direct ownership, indirect ownership through
capital stock or other ownership interest (whether through one or more levels
of subsidiaries, affiliates or other Persons) and any other direct or indirect
ownership arrangement. Interest and fees shall accrue at the rates and
otherwise as provided in (i) the 1992 Credit Agreement to but excluding the
date of this Agreement, and (ii) this Agreement on and after the date of this
Agreement.
SECTION 1.05. Unimar. To the extent this Agreement or any
other Financing Document obligates the Company or a Subsidiary to cause Unimar
and the Unimar Subsidiaries to take any action, such obligation shall be
satisfied if (a) the Company votes (or causes a Subsidiary to vote) the Unimar
Percentage in a manner consistent with the obligations of the Company and the
Subsidiaries under the Financing Documents and (b) any representative of the
Company sitting on any management board or board of directors of Unimar or any
of the Unimar Subsidiaries votes, as a member of such management board or board
of directors, in a manner consistent with the obligations of the Company and
the Subsidiaries under the Financing Documents.
SECTION 1.06. Ratings. A rating, whether public or private,
by S&P shall be deemed to be in effect on the date of announcement or
publication by S&P, as the case may be, of such rating or, in the absence of
such announcement or publication, on the effective date of such rating and will
remain in effect until the effective date of any change in such rating. In the
event the standards for any rating by S&P are revised, or such rating is
designated differently (such as by changing letter designations to numerical
designations), then the references herein to such rating shall be changed to
the revised or redesignated rating for which the standards are closest to, but
not lower than, the standards at the date hereof for the rating which has been
revised or redesignated, all as determined by the Agent in good faith.
Long-term debt supported by a letter of credit, guaranty (other than guaranties
of Subsidiaries) or other similar credit enhancement mechanism shall not be
considered as senior unsecured long-term debt.
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ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the Revolving
Credit Period each Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Company pursuant to this Section from
time to time in amounts such that the aggregate principal amount of Committed
Loans by such Bank at any one time outstanding to the Company shall not exceed
the amount of such Bank's Commitment at such time. Each Borrowing under this
Section shall be in an aggregate principal amount of $10,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be, subject to the
other terms hereof, in the aggregate amount available in accordance with
Section 3.02(b)) and shall be made from the several Banks ratably in proportion
to their respective Commitments. Within the foregoing limits, the Company may
borrow under this Section, repay (whether pursuant to Section 2.10 or
otherwise), or to the extent permitted by Section 2.11, prepay Loans and
reborrow at any time during the Revolving Credit Period under this Section.
SECTION 2.02. Notice of Committed Borrowings. (a) The
Company shall give the Agent notice (a "Notice of Committed Borrowing") not
later than 10:00 A.M. (Houston time) on (x) the date of each Base Rate
Borrowing, and (y) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to
be Base Rate Loans or Euro-Dollar Loans,
(iv) in the case of a Fixed Rate Borrowing, the duration
of the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period, and
(v) if such Interest Period includes (but does not end
on) a Commitment Reduction Date and
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all or part of such Loans are to be repaid on such date to comply with
Section 2.10(c), the aggregate amount then to be repaid.
Notwithstanding the foregoing, not more than twelve Euro-Dollar Borrowings
shall be outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
(b) If requested to do so by the Company through the
Agent at least ten Euro-Dollar Business Days before the first day of a proposed
Interest Period for Euro-Dollar Loans, each Bank will advise the Agent before
10:00 A.M. (Houston time) on the sixth Euro-Dollar Business Day preceding the
date of such proposed Interest Period as to whether, if the Company selects a
specified duration of nine or twelve months for such Interest Period, such Bank
expects that deposits in dollars with a corresponding term will be available to
it in the relevant market on the first day of such Interest Period in the
amount required to fund its Loan to which such Interest Period would apply.
Unless a Bank responds by such time to the effect that it expects such deposits
will not be available to it, the Company shall be entitled to select such
proposed duration for such Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.01, the Company may, as set forth in this
Section, request the Banks during the Revolving Credit Period to make offers to
make Money Market Loans to the Company pursuant to a request substantially in
the form of Exhibit B hereto (a "Money Market Quote Request"); provided that
the Company may not make a Money Market Quote Request if (assuming such Money
Market Quote Request results in one or more Money Market Loans being made)
there would be outstanding Money Market Loans resulting from more than five
different Money Market Quote Requests. The Banks may, but shall have no
obligation to, make such offers and the Company may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Company wishes
to request offers to make Money Market Loans under this Section, it shall
transmit to the Agent by telex or facsimile transmission a Money Market Quote
Request so as to be received no later than 9:00 A.M. (Houston time) on (x) the
fifth Euro-Dollar Business Day prior to the date of Borrowing proposed
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therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Company and
the Agent shall have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall
be $10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, which Interest Period may not be less than one month in the
case of LIBOR Auction or less than 14 days in the case of an Absolute
Rate Auction, and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Company may request offers to make Money Market Loans for more than one but
not more than three Interest Periods in a single Money Market Quote Request.
No Money Market Quote Request shall be given within five Euro-Dollar Business
Days (or such other number of days as the Company and the Agent may agree) of
any other Money Market Quote Request. No Money Market Quote Request shall be
given if the amount of the Borrowing requested therein plus the aggregate
outstanding principal amount of all Money Market Loans scheduled to be
outstanding on the date of such Borrowing would exceed $200,000,000. On each
date on which the Company makes a Money Market Quote Request it shall pay to
the Agent for its account an administrative fee of $1,000.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Agent shall send to the Banks by
telex or facsimile transmission an invitation for Money Market Quotes
substantially in the form of Exhibit C hereto (an "Invitation for Money Market
Quotes"), which shall constitute an invitation by the Company to each
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Bank to submit Money Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance with this Section;
provided that the Agent shall not be required to send an Invitation for Money
Market Quotes to any Bank that has failed to submit a Money Market Quote after
each of the last three Invitations for Money Market Quotes sent to such Bank
unless the Company or such Bank has given notice to the Agent specifically
referring to such Invitation for Money Market Quotes and requesting that this
proviso not apply to such Invitation for Money Market Quotes.
(d) Submission and Contents of Money Market Quotes. (i)
Each Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 1:00 P.M.
(Houston time) on the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 9:00 A.M. (Houston
time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Company and the
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any affiliate of the Agent) in
the capacity of a Bank may be submitted, and may only be submitted, if the
Agent or such affiliate notifies the Company of the terms of the offer or
offers contained therein not later than (x) 12:00 Noon (Houston time) on the
fourth Euro-Dollar Business Day prior to the proposed date of Borrowing, in the
case of a LIBOR Auction or (y) 8:45 A.M. (Houston time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction. Subject to Articles III
and VI, any Money Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount (w) may be
greater than, equal to
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or less than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested
and (z) may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (rounded to the nearest 1/10,000th of 1%) to be added to or
subtracted from such London Interbank Offered Rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the appropriate time set forth in
subsection (d)(i).
(e) Notice to Company. The Agent shall promptly notify
the Company of the terms (x) of any Money Market Quote submitted by a Bank that
is in accordance with subsection (d)
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and (y) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money
Market Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such former
Money Market Quote. The Agent's notice to the Company shall specify (A) the
aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market Quote
Request, (B) the respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Company. Not later than
9:30 A.M. (Houston time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or day as the Company and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), the Company shall notify the Agent of
its acceptance or nonacceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Company may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request,
(ii) the principal amount of each Money Market Borrowing
must be $10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Company may not accept any offer that is
described in subsection (d)(iii) or that
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otherwise fails to comply with the requirements of this Agreement.
If the Company shall not have notified the Agent of its acceptance or
non-acceptance of the offers pursuant to this subsection (f), the Company shall
be deemed not to have accepted any offer so notified to it pursuant to
subsection (e).
(g) Allocation by Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as nearly as possible
(in multiples of $1,000,000, as the Agent may deem appropriate) in proportion
to the aggregate principal amounts of such offers. Determinations by the Agent
of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
(h) Information. Within 15 days after receipt of each
Money Market Quote Request, the Agent will deliver to the Company a copy of
each Money Market Quote received by it pursuant to the related Invitation for
Money Market Quotes.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent
shall promptly (except in the case of notice to a Bank with respect to an
acceptance of such Bank's Money Market Quote by the Company, by no later than
10:30 A.M. (Houston time) by telephone or facsimile transmission) notify each
Bank of the contents thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Company.
(b) Not later than 12:00 Noon (Houston time) on the date
of each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in Houston, to the Agent at its
address specified in or pursuant to Section 9.01. Unless the Agent determines
that any applicable condition specified in Article III has not been satisfied,
the Agent will make the funds so received from the Banks available to the
Company at the Agent's aforesaid address.
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(c) If any Bank makes a new Loan hereunder to the Company
on a day on which the Company is to repay all or any part of an outstanding
Loan from such Bank, such Bank shall apply the proceeds of its new Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed by the Company and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (b), or remitted
by the Company to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Agent such Bank's share of such Borrowing, the Agent may assume that
such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this Section 2.04 and
the Agent may, in reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent that such Bank shall
not have so made such share available to the Agent, such Bank and the Company
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Company until the date such amount is repaid to the
Agent, at (i) in the case of the Company, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to the
Company shall be evidenced by a single Note of the Company payable to the order
of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's Loans to the
Company.
(b) Each Bank may, by notice to the Company and the
Agent, request that its Loans of a particular Type payable to such Bank (or
such lending office, agency or branch of such Bank as such Bank may specify in
such request) be evidenced by a separate Note of the Company in an amount equal
to the aggregate unpaid principal amount of such Loans. Each such Note shall
be in substantially the form of Exhibit A hereto with appropriate modifications
to reflect the fact that it evidences solely Loans of the relevant Type. Any
Bank that receives multiple Notes pursuant to this Section 2.05(b)
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agrees that: (1) the aggregate principal amount payable by the Company under
such Notes shall never exceed the aggregate principal amount of the Loans owed
to such Bank (including, if applicable, the separate lending offices, agencies
or branches of such Bank) and (2) the payees of the Notes issued at the request
of such Bank shall enjoy no greater rights (voting or otherwise) than such Bank
would enjoy in the absence of such request and such payees (including, if
applicable, the separate lending offices, agencies or branches of such Bank)
shall be considered a single Bank for purposes of this Agreement. Each
reference in this Agreement to the "Note" of such Bank shall be deemed to refer
to and include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section
3.01(b), the Agent shall mail or send by private delivery service such Note to
such Bank. Each Bank shall record the date, amount, maturity and, if
applicable, Type of each Loan made by it to the Company and the date and amount
of each payment of principal made with respect thereto, and prior to any
transfer of its Note shall endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure of any Bank to make
any such recordation or endorsement shall not affect the obligations of any
Obligor under any of the Financing Documents. Each Bank is hereby irrevocably
authorized by the Company so to endorse any Note and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Subject to Section 2.10,
each Committed Loan shall mature, and the principal amount thereof shall be due
and payable, on the Termination Date. Each Money Market Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. The Company shall pay
interest on the unpaid principal amount of each Loan from the date of such Loan
until such principal amount shall be paid in full, at the following rates per
annum:
(a) If such Loan is a Base Rate Loan, for each day that such
Loan is a Base Rate Loan, at a rate per annum equal to the sum of (i) the Base
Rate for such day plus (ii) at such times as the Margin Increase Condition
exists and the Additional Margin Increase Condition does not exist, 1/8% plus
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(iii) at such times as the Additional Margin Increase Condition exists, 1/4%
plus (iv) at such times as any Event of Default exists, 1%. Such interest
shall be payable quarterly on each March 31, June 30, September 30 and December
31 and on the date such Base Rate Loan is Converted or paid in full. Any
overdue interest on any Base Rate Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 1% plus the
otherwise applicable rate for such day.
(b) If such Loan is a Euro-Dollar Loan, at a rate per
annum equal at all times during any Interest Period for such Loan to the sum of
(i) 0.575% plus (ii) the applicable London Interbank Offered Rate plus (iii) at
such times as the Margin Increase Condition exists and the Additional Margin
Increase Condition does not exist, 1/8% plus (iv) at such times as the
Additional Margin Increase Condition exists, 1/4% plus (v) at such times as any
Event of Default exists, 1%; provided that if any Euro-Dollar Loan or any
portion thereof shall, as a result of clause (1)(c)(i) of the definition of
Interest Period, have an Interest Period of less than one month, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest
Period means the arithmetic average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which deposits in
dollars are offered to each of the Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Reference Bank to which
such Interest Period is to apply and for a period of time comparable to such
Interest Period.
(c) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of actual
payment, at a rate per annum equal to the sum of 1% plus the higher of (i) the
sum of 0.575% plus the London Interbank Offered Rate applicable to such Loan
plus at such times as the Margin Increase Condition exists and the Additional
Margin Increase Condition does not exist, 1/8% plus at such times as the
Additional Margin
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Increase Condition exists, 1/4% and (ii) the sum of (1) 0.575% plus (2) the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period
of time not longer than three months as the Agent may select) deposits in
dollars in an amount approximately equal to such overdue payment due to each of
the Reference Banks are offered to such Reference Bank in the London interbank
market for the applicable period determined as provided above plus (3) at such
times as the Margin Increase Condition exists and the Additional Margin
Increase Condition does not exist, 1/8% plus (4) at such times as the
Additional Margin Increase Condition exists, 1/4% (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 1% plus the rate applicable to Base Rate Loans for such
day).
(d) Subject to Section 8.01(a), each Money Market LIBOR
Loan shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(b) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.03 plus, at
such times as any Event of Default exists, 1%. Each Money Market Absolute Rate
Loan shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.03 plus, at such times as any Event of Default exists, 1%. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof. Any overdue principal of or interest on
any Money Market Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 1% plus the Base Rate for
such day.
(e) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give prompt notice to the
Company and the participating Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
Upon request of the Company, the Agent shall furnish to it
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such information as to its determinations hereunder as the Company may
reasonably request.
(f) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.01 shall
apply.
(g) This Section 2.07 and each other provision in any of
the Financing Documents or in any other agreement executed in connection
herewith are specifically made subject to Section 2.16.
SECTION 2.08. Fees.
(a) Commitment Fee. During the period from and including
the date of this Agreement to but excluding the Termination Date, the Company
shall pay to the Agent for the account of the Banks ratably in proportion to
their Commitments a commitment fee at a rate per annum equal to 0.075% on the
daily average amount by which the aggregate amount of the Commitments exceed
the aggregate outstanding principal amount of the Loans. Such commitment fee
shall accrue from and including the date of this Agreement to but excluding the
Termination Date.
(b) Facility Fee. The Company shall pay to the Agent for
the account of the Banks ratably a facility fee at a rate per annum equal to
0.175%. Such facility fee shall accrue (i) from and including the date of this
Agreement to but excluding the earlier of the Termination Date or the date the
Commitments are otherwise terminated, on the daily average aggregate amount of
the Commitments (whether used or unused) and (ii) from and including the
earlier of the Termination Date or the date the Commitments are otherwise
terminated to but excluding the date the Loans shall be repaid in their
entirety, on the daily average aggregate outstanding principal amount of the
Loans.
(c) Payments. Accrued fees under this Section 2.08
(other than Section 2.08(d)) shall be payable quarterly on each March 31, June
30, September 30 and December 31 and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be
repaid in their entirety).
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(d) 1992 Agreement. On the date of this Agreement, the
Company shall pay (i) to the Agent for the account of the Banks and any other
lenders under the 1992 Agreement, the commitment fees and facility fees accrued
thereunder to but excluding the date of this Agreement, and (ii) to the Agent
for the account of each Bank any amendment fee that the Company has previously
agreed to pay to such Bank in connection with this Agreement.
SECTION 2.09. Optional Termination or Reduction of
Commitments. The Company may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Commitments at any time, if no Loans are
outstanding at such time or (ii) ratably reduce from time to time by an
aggregate amount of $10,000,000 or any larger multiple of $5,000,000 the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
SECTION 2.10. Mandatory Termination or Reduction of
Commitments. (a) The Commitments shall terminate on the Termination Date and
any Loans then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
(b) The Commitment of each Bank shall be automatically
reduced, on each Commitment Reduction Date, to an amount equal to such Bank's
ratable share of (i) the amount of maximum aggregate Commitments set forth in
Schedule I with respect to such Commitment Reduction Date minus (ii) the
aggregate amount of all reductions of the Commitments pursuant to Section 2.09
or Section 2.10(d) applicable to such Commitment Reduction Date pursuant to the
following sentence. Each reduction of the Commitments pursuant to Section 2.09
or Section 2.10(d) shall be applied to reduce each amount set forth on Schedule
I for each subsequent Commitment Reduction Date by an amount equal to the
amount of such reduction divided by the number of Commitment Reduction Dates to
occur on or after the date such reduction is effective.
(c) On each Commitment Reduction Date, the Company shall
be obligated to repay such principal amount (together with accrued interest
thereon) of each Bank's outstanding Committed Loans, if any, as may be
necessary so that after such repayment the aggregate outstanding principal
amount of such Bank's Committed Loans does not exceed the amount of such Bank's
Commitment as then reduced. Whenever the Interest Period specified in a Notice
of Committed Borrowing includes (but does not end on) a Commitment Reduction
Date on which a payment of Committed Loans will be required under this
subsection (c), the Company shall consider whether it wishes to repay on such
Commitment Reduction Date all or part of the Borrowing to be made pursuant to
such Notice of Committed
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Borrowing and, if so, shall specify the aggregate amount so to be repaid in
such Notice of Committed Borrowing. If the Company fails so to select the
Committed Borrowing to be repaid on any Commitment Reduction Date, such
Committed Borrowing shall be selected by the Agent.
(d) On the fifth Domestic Business Day following any
Asset Sale that results in positive Excess Net Sales Proceeds, (i) the Company
will deliver to each of the Banks a certificate of the chief financial officer,
the chief accounting officer or the treasurer of the Company certifying the
amount of such Excess Net Sales Proceeds from such Asset Sale, (ii) the
Commitments shall be automatically reduced ratably by an amount equal to 100%
of the amount of such Excess Net Sales Proceeds from such Asset Sale, (iii) the
Company shall be obligated to repay such principal amount (together with
accrued interest thereon) of each Bank's outstanding Committed Loans, if any,
as may be necessary so that after such repayment the aggregate outstanding
principal amount of such Bank's Committed Loans does not exceed the amount of
such Bank's Commitment as then reduced.
SECTION 2.11. Optional Prepayments. (a) The Company may,
upon at least one Domestic Business Day's notice to the Agent, prepay any
Borrowing in whole at any time, or from time to time in part in amounts
aggregating $10,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, provided that no partial prepayment of a Euro-Dollar
Borrowing or a Money Market Borrowing shall be made if after giving effect
thereto the principal amount of such Borrowing would be less than $10,000,000.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to
this Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Company.
SECTION 2.12. General Provisions as to Payments. (a) The
Company shall make each payment of principal of, and interest on, the Loans and
of fees hereunder, not later than 12:00 Noon (Houston time) on the date when
due, in Federal or other funds immediately available in Houston, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is
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not a Domestic Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due from the Company to the
Banks hereunder that the Company will not make such payment in full, the Agent
may assume that the Company has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent that the Company shall not have so made
such payment, each Bank shall repay to the Agent forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If any Obligor makes any
payment of principal with respect to any Fixed Rate Loan (pursuant to Article
II, VI or VIII or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the end of an applicable period fixed pursuant to
Section 2.07(c), or if the Company fails to borrow any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.04(a), or if any
Conversion of any Euro-Dollar Loan occurs on any day other than the last day of
an Interest Period applicable thereto, the Company shall reimburse each Bank
within 15 days after demand for any resulting loss or expense incurred by it
(or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin from the period after
any such payment or failure to borrow, provided that such Bank shall have
delivered to the Company a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error.
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SECTION 2.14. Computation of Interest and Fees. Interest
based on the Base Rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
SECTION 2.15. Chapter 15. In no event shall the provisions
of Article 5069, Chapter 15 of the Revised Civil Statutes of Texas (which
regulates certain revolving credit loan accounts and revolving tri-party
accounts) apply to any Loan made hereunder.
SECTION 2.16. Maximum Interest Rate. (a) Nothing contained
in this Agreement or the Notes shall require the Company to pay interest at a
rate exceeding the maximum rate permitted without penalty by applicable law.
Each provision in the Financing Documents and any other agreement executed in
connection herewith is expressly limited so that in no event whatsoever shall
the amount paid thereunder, or otherwise paid, by the Company for the use,
forbearance or detention of the money to be loaned under this Agreement, exceed
that amount of money which would cause the effective rate of interest thereon
to exceed the maximum rate of interest permitted without penalty under
applicable law, and all amounts payable under the Financing Documents or any
other agreement executed in connection herewith, or otherwise payable in
connection therewith, shall be subject to reduction so that such amounts paid
or payable for the use, forbearance or detention of money to be loaned under
this Agreement shall not exceed that amount of money which would cause the
effective rate of interest thereon to exceed the maximum rate of interest
permitted without penalty under applicable law.
(b) If the amount of interest payable for the account of
any Bank on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to Section 2.07, would exceed
the maximum amount permitted without penalty by applicable law to be charged by
such Bank, the amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of
any Bank in respect of any interest computation period is reduced pursuant to
clause (b) of this Section and the amount of interest payable for its account
in respect of any subsequent interest computation period, computed pursuant to
Section 2.07, would be less than the maximum amount permitted without penalty
by applicable law to be charged by
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such Bank, then the amount of interest payable for its account in respect of
such subsequent interest computation period shall be automatically increased to
such maximum permissible amount; provided that at no time shall the aggregate
amount by which interest paid for the account of any Bank has been increased
pursuant to this clause (c) exceed the aggregate amount by which interest paid
for its account has theretofore been reduced pursuant to clause (b) of this
Section.
(d) In the event that maturity of the Loans is
accelerated for any reason, or in the event of any required or permitted
prepayment of the Loans, then such consideration that constitutes interest
payable for the account of any Bank shall never include more than the maximum
amount allowed without penalty by applicable law to be charged by such Bank and
excess interest, if any, payable for the account of such Bank pursuant to its
Note, this Agreement or otherwise shall be cancelled automatically as of the
date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Loans of such Bank (or, to the extent in excess of such Loans,
refunded by such Bank to the Company).
(e) It is further agreed that, without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received for the account of any Bank under the Note held by it, under this
Agreement, under any other agreement executed in connection herewith or
otherwise in connection with the Loans or the Commitment of such Bank for the
purpose of determining whether such rate exceeds the maximum nonusurious
interest rate applicable to such Bank, shall be made, to the extent permitted
by usury laws applicable to such Bank (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the period of the
full stated terms of the Loans evidenced by such Note all interest at any time
contracted for, charged or received by such Bank in connection therewith.
(f) To the extent that any Bank may be subject to Texas
law limiting the amount of interest payable for its account, such Bank shall
utilize the indicated (weekly) rate ceiling from time to time in effect as
provided in Article 5069-1.04 of the Revised Civil Statutes of Texas, as
amended.
SECTION 2.17. Taxes. (a) Any and all payments by the Company
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges and withholdings, and all
liabilities with respect thereto, excluding (i) in the case of the Agent, each
Co-Agent and each Bank, United States federal income taxes and, without
duplication, any taxes imposed on its income, and franchise taxes imposed on
it, by the
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jurisdiction under the laws of which the Agent, such Co-Agent or such Bank, as
the case may be, is organized or any political subdivision thereof and (ii) in
the case of each Bank, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of such Bank's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Company shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Bank, any
Co-Agent or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.17) such Bank, such
Co-Agent or the Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, assessments,
charges or similar levies which arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, any of the Notes or the Subsidiary Guaranty
Agreement (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank, each Co-Agent and the
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.17) paid by such Bank, such Co-Agent or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payments under any
indemnification provided for in this Section 2.17(c) shall be made within 30
days from the date such Bank, such Co-Agent or the Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Company will furnish to the Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
Should any Bank, any Co-Agent or the Agent ever receive any refund, credit or
deduction from any taxing authority to which such Bank, such Co-Agent or the
Agent, as the case may be, would not be entitled but for the payment by the
Company of Taxes as
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required by this Section 2.17 (it being understood that the decision as to
whether or not to claim, and if claimed, as to the amount of any such refund,
credit or deduction shall be made by such Bank, such Co-Agent or the Agent, as
the case may be, in its sole discretion), such Bank, such Co-Agent or the
Agent, as the case may be, thereupon shall repay to the Company an amount with
respect to such refund, credit or deduction equal to any net reduction in taxes
actually obtained by such Bank, such Co-Agent or the Agent, as the case may be,
and reasonably determined by such Bank, such Co-Agent or the Agent, as the case
may be, to be attributable to such refund, credit or deduction.
(e) Each Bank represents that it is either (i) a corporation,
association or other entity organized under the laws of the United States or
any state thereof or (ii) entitled to complete exemption from United States
withholding tax imposed on or with respect to any payments, including fees, to
be made to it pursuant to this Agreement or the Notes. Each Bank that is not
organized under the laws of the United States or any state thereof (a "Foreign
Bank") agrees to provide to the Company and the Agent, on or prior to the date
of this Agreement in the case of each Foreign Bank signatory hereto, and on the
date of the Assignment pursuant to which it became a Bank in the case of each
other Foreign Bank, two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Foreign Bank is
entitled to receive payments from the Company under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Foreign Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and the Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Company
or the Agent, in each case certifying that such Foreign Bank is entitled to
receive payments from the Company under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Foreign Bank from duly completing and delivering any such form with respect to
it and such Foreign Bank advises the Company and the Agent that it is not
capable of receiving such payments without any deduction or withholding of
United States federal income tax. Each Bank agrees to indemnify and hold the
Company and the Agent
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harmless from any United States taxes, penalties, interest and other expenses,
costs and losses incurred or payable by them as a result of either (a) such
Bank's failure to submit any form that it is required to provide pursuant to
this Section 2.17(e) or (b) the Agent's and the Company's reliance on any such
form which such Bank has provided to them, or on the representation of such
Bank made to them pursuant to this Section 2.17(e).
(f) If any Taxes are paid by the Company pursuant to this Section
2.17 in respect of the Applicable Lending Office of any Bank, such Bank will,
if requested to do so by the Company, designate a different Applicable Lending
Office if such designation will avoid the need to pay, or reduce the amount of,
such Taxes and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
SECTION 2.18. Conversions. (a) The Company may on any
Euro-Dollar Business Day, upon notice given to the Agent no later than 10:00
a.m. (Houston time) on the third Euro-Dollar Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.02 and
Article VIII and the other provisions hereof, Convert all Committed Loans
comprising one or more Borrowings; provided, that (i) Loans comprising a
Borrowing may not be Converted if after giving effect to such Conversion, such
Borrowing would be a Euro-Dollar Borrowing and the outstanding principal amount
of such Borrowing would be less than $10,000,000 and (ii) no Conversion (other
than changing Euro-Dollar Loans into Base Rate Loans) may be made if any Event
of Default is then existing. Each such notice of a Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Loans to be Converted, (iii) if after giving effect to such Conversion,
such Borrowing would be a Euro-Dollar Borrowing, the commencement date and
duration of the proposed Interest Period for each Loan comprising such
Borrowing, and (iv) the nature of such Conversion (i.e., whether such
Conversion is a change of Committed Loans of one Type into another Type, a
continuation of Euro-Dollar Loans as such for an additional Interest Period or
an election to change an Interest Period). Each such notice shall be
irrevocable.
(b) If the aggregate unpaid principal amount of
Euro-Dollar Loans comprising any Borrowing shall be reduced by payment or
prepayment or otherwise, to less than $10,000,000, such Loans shall
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Loans.
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(c) If the Company shall fail to select the duration of
any Interest Period for any Euro-Dollar Loans in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, or if there
shall be any Event of Default, such Loans will automatically on the last day of
the then existing Interest Period therefor, Convert into Base Rate Loans.
ARTICLE III
CONDITIONS
SECTION 3.01. Initial Borrowing. The obligation of any Bank
to make a Loan on the occasion of the initial Borrowing on or after the date of
this Agreement is subject to the satisfaction (or waiver in accordance with
Section 9.05) of each of the following conditions:
(a) receipt by the Agent of counterparts hereof signed by
each of the parties hereto (or, in the case of any party as to which
an executed counterpart shall not have been received, receipt by the
Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart
hereof by such party);
(b) receipt by the Agent for the account of each Bank of
a duly executed Note of the Company dated on the date of this
Agreement complying with the provisions of Section 2.05;
(c) receipt by the Agent of the Subsidiary Guaranty
Agreement, duly executed by each of the Required Guarantors;
(d) receipt by the Agent of an opinion of Newton W.
Wilson, III, General Counsel of the Company, substantially in the form
of Exhibit F hereto;
(e) receipt by the Agent of an opinion of Andrews & Kurth
L.L.P., special counsel for the Obligors, substantially in the form of
Exhibit G hereto;
(f) receipt by the Agent of an opinion of Bracewell &
Patterson, special counsel for the Agent, substantially in the form of
Exhibit H hereto;
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(g) receipt by the Agent of opinions of local counsel,
substantially in the forms of Exhibits J-1 and J-2 hereto;
(h) receipt by the Agent of all documents it may
reasonably request relating to the existence of the Obligors, the
corporate authority for and the validity of each of the Financing
Documents, and any other matters relevant thereto, all in form and
substance satisfactory to the Agent;
(i) receipt by the Agent of a certificate of an officer
of the Company stating the rating by S&P of all senior unsecured
long-term debt of the Company as in effect on the date of this
Agreement; and
(j) receipt by the Agent of a certificate of the chief
financial officer, the chief accounting officer or the treasurer of
the Company certifying, as of the date of this Agreement, that no
Default exists.
SECTION 3.02. All Borrowings. The obligation of any Bank to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions (in addition to the conditions set forth in Section
3.01):
(a) receipt by the Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed
the aggregate amount of the Commitments;
(c) the fact that immediately prior to and immediately
after such Borrowing, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and warranties of
the Company contained in this Agreement (except, in the case of any
Borrowing subsequent to the first Borrowing, the representations and
warranties set forth in Section 4.04(a) or (c)) shall be true and
correct in all material respects on and as of the date of such
Borrowing.
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Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company on the date of such Borrowing as to the facts specified in this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the
Obligors is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to own its assets and to carry on its business
as now conducted and is duly qualified as a foreign corporation in good
standing in each jurisdiction where the nature of its business or the ownership
or leasing of its properties requires such qualification and where the failure
so to qualify could have a material adverse effect on the business, financial
position, results of operations or prospects of the Company and its
Subsidiaries, taken as a whole. Neither the Company nor any Subsidiary or
Affiliate is subject to regulation under the Public Utility Holding Company Act
of 1935, the Investment Company Act of 1940, the Interstate Commerce Act or any
other law or regulation which limits the incurrence by the Company or any
Subsidiary of Debt, including, but not limited to, laws relating to common or
contract carriers or the sale of electricity, gas, steam, water or other public
utility services.
SECTION 4.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by each Obligor of each
Financing Document to which it is shown as being a party are within such
Obligor's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, or constitute a default under, any
provision of applicable law or regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System) or the certificate of incorporation, by-laws or other charter documents
of such Obligor or of any instrument or agreement evidencing or governing Debt
or any other material agreement, judgment, injunction, order, decree or other
instrument binding upon such Obligor or result in the creation or imposition of
any material Lien on any asset of the Company or any Subsidiary. All
authorizations, consents and approvals of governmental bodies, agencies or
officials required in connection with the execution, delivery and performance
by each Obligor of the Financing Documents to which it is shown
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as being a party have been obtained and are in full force and effect.
SECTION 4.03. Binding Effect. This Agreement and each of the
Notes have been duly executed and delivered by the Company and constitute
legal, valid and binding agreements of the Company, and the Subsidiary Guaranty
Agreement has been duly executed and delivered by each Required Guarantor and
constitutes a legal, valid and binding obligation of each Required Guarantor.
SECTION 4.04. Information.
(a) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1993 and the related consolidated
statements of operations, cash flows and common stock and other shareholders'
equity for the fiscal year then ended, reported on by Price Waterhouse and set
forth in the Company's 1993 Form 10-K, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Company and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) To the best knowledge of the Company, there are no
statements or conclusions in any Engineering Report delivered pursuant hereto
which are based upon or include misleading information or fail to take into
account material information regarding the matters reported therein, it being
understood that such statements and conclusions are necessarily based upon
professional opinions, estimates and forecasts, and the Company does not
warrant that such opinions, estimates and forecasts will ultimately prove to
have been accurate.
(c) The Company's 1993 Form 10-K does not contain any
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements contained therein not misleading. Except for
matters of general public knowledge with respect to the oil and gas industry,
the Company has disclosed to the Banks in writing any and all facts which
materially and adversely affect or may be reasonably expected so to affect (to
the extent the Company can now reasonably foresee), the business, assets,
operations, prospects or condition, financial or otherwise, of the Company and
its Subsidiaries or the ability of any Obligor to perform its obligations under
the Financing Documents.
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(d) Since December 31, 1993 there has been no material
adverse change in the business, financial position, results of operations or
prospects of the Company and its Subsidiaries, taken as a whole.
(e) No Default exists.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries or any of their
respective properties or interests at law or in admiralty or equity, before any
court or arbitrator or any governmental body, agency or official, foreign or
domestic, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or
results of operations of the Company and its Subsidiaries, taken as a whole, or
which in any manner draws into question the validity of any Financing Document.
SECTION 4.06. Compliance with ERISA. Each member of the
ERISA Group has fulfilled its obligations under the minimum funding standards
of ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course
of its business, the Company conducts an ongoing review of the effect of
existing Environmental Laws on the business, operations and properties of the
Company and the Subsidiaries, in the course of which it attempts to identify
and evaluate associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent
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shutdown of any facility or reduction in the level of or change in the nature
of operations conducted thereat and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On
the basis of this review, the Company has reasonably concluded that existing
Environmental Laws are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Company and its Subsidiaries, taken as a whole.
SECTION 4.08. Subsidiaries. All Restricted Assets are owned
as of the date of this Agreement by the Company and the Persons listed in Part
B of Schedule II hereto or, in the case of Restricted Assets sold since
December 31, 1993, by Persons other than Unrestricted Subsidiaries. The list
of entities under the caption "Subsidiary Guarantors" on the signature pages of
the Subsidiary Guaranty Agreement constitutes a true, complete and accurate
list of all Required Guarantors as of the date of this Agreement. Part A of
Schedule II hereto contains a true, complete and accurate list of all
Unrestricted Subsidiaries, and Part B of Schedule II hereto contains a true,
complete and accurate list of all Restricted Subsidiaries as of the date of
this Agreement.
SECTION 4.09. Ownership of Restricted Subsidiaries. The
Company or a Restricted Subsidiary is the record and beneficial owner, free and
clear of all Liens (other than those permitted by Section 5.07), of (i) all of
the issued and outstanding capital stock (other than directors' qualifying
shares and shares beneficially owned by the Company or a Restricted Subsidiary
and held by nominees of the Company or a Restricted Subsidiary solely to
satisfy requirements of local law) and other ownership interests of each
Restricted Subsidiary (except Unimar and the Unimar Restricted Subsidiaries and
any other Restricted Subsidiary the capital stock of which is sold pursuant to
a sale permitted by Section 5.14) and (ii) except during any period during
which Unimar is an Unrestricted Subsidiary or ceases to be a Subsidiary, at
least 50% of the ownership interest in Unimar and the Unimar Restricted
Subsidiaries. Except as disclosed on Schedule VI, there are no outstanding
options, warrants or other rights to acquire any capital stock or other
ownership interest of any Restricted Subsidiary.
SECTION 4.10. Title to Properties. The Company and each of
the Subsidiaries have good title, free and clear of all Liens, claims, burdens
and title defects, to all of the material assets reflected in the Company's or
such Subsidiary's books and records as being owned by them except Liens
permitted by this Agreement and claims, burdens and title defects not
materially adverse in the aggregate.
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SECTION 4.11. Taxes and Other Obligations. Consolidated
United States Federal income tax returns of the Company and the Subsidiaries
have been examined by the Internal Revenue Service, or the statutory period for
such examination has expired, for all years up to and including the year ended
December 31, 1989, and all assessed deficiencies resulting from such
examination have been discharged or reserved against as required by generally
accepted accounting principles. The Company and the Subsidiaries have filed
all United States Federal, state and local income tax returns and all other
material domestic tax returns which are required to be filed by them and have
paid, or provided for the payment before the same became delinquent of, all
taxes due pursuant to such returns or pursuant to any assessment received by
the Company or any Subsidiary, other than those taxes being diligently
contested in good faith by appropriate proceedings. The charges, accruals and
reserves on the books of the Company and the Subsidiaries in respect of taxes
are, in the opinion of the Company, adequate. The Company and the Subsidiaries
have set up such reserves as are required by generally accepted accounting
principles for the payment of additional taxes for years which have not been
audited by the respective tax authorities. The Company and the Subsidiaries
have paid all other material obligations when due other than those being
contested in good faith by appropriate proceedings.
SECTION 4.12. Regulation U. Neither the Company nor any
Subsidiary is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation G) or
margin stock (within the meaning of Regulation U). Following the application
of the proceeds of each Loan, not more than 25% of the value of the assets of
the Company, or of the Company and its Subsidiaries, which are subject to any
arrangement with the Agent or any Bank (herein or otherwise) whereby the
Company's or any Subsidiary's right or ability to sell, pledge or otherwise
dispose of assets is in any way restricted will be any such margin stock.
SECTION 4.13. Certain Obligations. Neither the Company nor
any Subsidiary has any obligation to make payments on the Joint Venture Debt
other than those permitted by Section 5.17. The only Non-Recourse Debt
existing on the date of this Agreement is the Existing Pakistan Non-Recourse
Debt.
SECTION 4.14. United Kingdom Assets. Substantially all of
the Restricted Assets located in the United Kingdom (including the United
Kingdom Sector of the North Sea) are directly owned by UTPL as of the date of
this Agreement.
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ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each
of the Banks:
(a) as soon as available and in any event within 100 days
after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
operations, cash flows and common stock and other shareholders' equity
for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by Price
Waterhouse or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year
of the Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of operations and cash flows for such
quarter and for the portion of the Company's fiscal year ended at the
end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding
portion of the Company's previous fiscal year, all certified (subject
to normal year-end adjustments) as to preparation in accordance with
generally accepted accounting principles and consistency by the chief
financial officer, the chief accounting officer or the treasurer of
the Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.05 and
5.15 on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which
the
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Company and its Subsidiaries are taking or propose to take with
respect thereto;
(d) as soon as available and in any event within 60 days
after the end of each fiscal quarter of the Company, a certificate of
the chief financial officer, the chief accounting officer or the
treasurer of the Company certifying (i) whether the Margin Increase
Condition will exist during the Margin Period commencing 61 days
following the end of such fiscal quarter and (whether or not any will
exist) setting forth the computation of each amount referred to in the
definition thereof as of the relevant dates or for the relevant
periods, (ii) whether the Additional Margin Increase Condition exists
as of the date of such certificate, (iii) the Unimar Percentage as of
the end of such quarter and the amounts as of the end of such quarter
of Consolidated Debt, Defeased Debt, Excluded Subordinated Debt, Debt
of the Company and its Consolidated Subsidiaries determined on a
consolidated basis, Debt of the Company and the Restricted
Subsidiaries determined on a consolidated basis, Debt of Unimar, Debt
of Unrestricted Subsidiaries, Excess Letter of Credit/Guarantee
Amount, Non-Restricted Asset Non-Recourse Debt, Non-Recourse Debt of
the Company and the Restricted Subsidiaries, and Restricted
Subsidiaries Recourse Debt, and (iv) each Asset Sale that has been
consummated during such quarter, the Fair Market Value of the
Restricted Assets subject thereto, the amount of fees, commissions,
expenses and taxes related thereto, the Net Sales Proceeds therefrom
and the cumulative amount of the Excess Net Sales Proceeds from all
Assets Sales since December 31, 1993;
(e) within five days after the chief financial officer,
the chief accounting officer or treasurer of the Company obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company setting forth the details
thereof and the action which the Company and its Subsidiaries are
taking or propose to take with respect thereto;
(f) immediately upon the filing of, or any material
development in, any litigation or the occurrence of any other event or
contingency, if such development, litigation, event or contingency
could reasonably be expected to have a material adverse effect on the
business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole, a
certificate of the chief financial officer, the chief accounting
officer or
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the treasurer of the Company setting forth the details of such
development, litigation, event or contingency and the action which the
Company and its Subsidiaries are taking or propose to take with
respect thereto;
(g) as soon as available and in any event within 100 days
after the end of each fiscal year of each Restricted Subsidiary (other
than the Unimar Restricted Subsidiaries), a consolidated balance sheet
of such Restricted Subsidiary and its consolidated subsidiaries as of
the end of such fiscal year and the related consolidated statements of
operations, cash flows and common stock and other shareholders' equity
for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all certified as to
preparation in accordance with generally accepted accounting
principles and consistency by the chief financial officer, the chief
accounting officer or the treasurer of such Restricted Subsidiary;
(h) as soon as available and in any event within 60 days
after the end of the first three quarters of each fiscal year of each
Restricted Subsidiary (other than the Unimar Restricted Subsidiaries,
Union Texas Petroleum Energy Corporation and Union Texas International
Corporation), a consolidated balance sheet of such Restricted
Subsidiary and its consolidated subsidiaries as of the end of such
quarter and the related consolidated statements of operations and cash
flows for such quarter and for the portion of such Restricted
Subsidiary's fiscal year ended at the end of such quarter, setting
forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of such Restricted
Subsidiary's previous fiscal year, all certified (subject to normal
year-end adjustments) as to preparation in accordance with generally
accepted accounting principles and consistency by the chief financial
officer, the chief accounting officer or the treasurer of such
Restricted Subsidiary;
(i) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports
and proxy statements so mailed;
(j) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or
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their equivalents) which the Company shall have filed with the
Securities and Exchange Commission;
(k) at least 45 days prior to the closing of each Asset
Sale that will result in aggregate Net Sales Proceeds (for such sale
or, if such sale is one of a series of related sales, for all sales
and contemplated sales in such series) of $50,000,000 or more, notice
of such sale describing the assets to be sold and the estimated Net
Sales Proceeds thereof;
(l) if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) (other than a "reportable event"
not subject to the provisions for 30-day notice to the PBGC under the
regulations issued under Section 4043 of ERISA) with respect to any
Plan which might constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer, any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c)
of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make
any payment or contribution to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer, the chief
accounting officer or the treasurer of the Company setting forth
details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take;
(m) within 5 days after the chief financial officer, the
Vice President-Finance, the treasurer or the controller of the Company
has knowledge of any filing
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under Rule 13d of the Securities and Exchange Commission, promulgated
under the Securities Exchange Act of 1934, as amended, a copy thereof;
(n) within 5 days after receipt by the Company of any
written agreement of the type referred to in Section 6.01(k)(iii)(c),
(A) a copy thereof except that (i) if such written agreement has not
been filed with the Securities and Exchange Commission and is not
otherwise public information, each Bank as a condition to receiving a
copy of such written agreement may be required to sign, prior to
receipt thereof, a confidentiality agreement pursuant to which it
agrees that it will treat such written agreement in a confidential
manner until such written agreement otherwise becomes public, except
for disclosure (a) to counsel for and other advisors, accountants and
auditors of such Bank, (b) as may be required by statute, decision,
order, rule, regulation or other law, (c) to regulatory authorities,
(d) in connection with any litigation involving such written
agreement, such confidentiality agreement or any of the Financing
Documents, and (e) in connection with any assignment, prospective
assignment, sale, prospective sale, participation or prospective
participation or other transfer or prospective transfer of any of such
Bank's interests hereunder provided that any such assignee,
prospective assignee, purchaser, prospective purchaser, participant,
prospective participant, transferee, or prospective transferee shall
have entered into a confidentiality agreement for the benefit of the
Company substantially upon the terms of this Section 5.01(n), and (ii)
if the Company is contractually prohibited from delivering a copy of
such written agreement to the Banks, the Company shall not be required
to deliver such written agreement unless such prohibition has been
waived, but the Company shall use reasonable efforts to obtain such
waiver or if it is a party to such written agreement to prevent any
such prohibition from being included therein, and (B) if the Company
is a party to such written agreement, but is excused pursuant to
clause (A)(ii) of this Section 5.01(n) from delivering a copy thereof
to the Banks, the Company shall notify the Banks of the existence of
such written agreement (but not the content thereof or other parties
thereto), but as a condition to receiving such notice the Banks may be
required to sign, prior to receipt of such notice, a confidentiality
agreement conforming to clause (A)(i) of this Section 5.01(n);
(o) by May 1 of each year, an Engineering Report as of
the last day of the immediately preceding year;
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(p) promptly upon the closing of the sale or other
disposition of any capital stock of UTPC or any option, warrant or
other right to acquire any such capital stock, notice thereof;
(q) promptly after any change in or termination of the
rating of any senior unsecured long-term debt of the Company by S&P,
notice thereof.
(r) from time to time such additional information
regarding the financial position or business of the Company or any
Subsidiary as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Affirmative Covenants. The Company will
maintain its existence and cause each Restricted Subsidiary to maintain its
existence except in the case of (i) a merger of a Restricted Subsidiary into
the Company in a merger permitted by Section 5.08 hereof, (ii) the merger of a
Restricted Subsidiary into another Restricted Subsidiary, if immediately after
such merger (and giving effect thereto), no Default shall have occurred and be
continuing, and (iii) any Asset Sale in the form of the merger of a Restricted
Subsidiary into another Person, if immediately after such merger (and giving
effect thereto), no Event of Default shall have occurred and be continuing.
The Company and each Subsidiary shall:
(a) Conduct of Business; Property. Cause all material
property useful and necessary in its business to be maintained in good
working order and condition and to be operated prudently in accordance
with good industry practice; and to the extent consistent with prudent
business practices, defend its right, title and interest in its
material properties against all adverse claims.
(b) Compliance with Laws. Comply with all applicable
laws, ordinances, rules, regulations and reporting, filing and other
requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder), except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or where the
failure to so comply would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(c) Inspection of Property, Books and Records. Keep
proper books of record and account in accordance with sound accounting
practices; and
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permit representatives of any Bank, at such Bank's sole risk and
expense, to visit and inspect any of its properties (subject to
obtaining any required consent of third-party operators), to examine
and make abstracts and copies from any of its books and records and to
discuss its affairs, finances and accounts with its officers and
employees, and use its best efforts to make its independent public
accountants available to discuss the affairs, finances and accounts of
the Company and any of its Subsidiaries, all at such reasonable times
and as often as may reasonably be desired.
SECTION 5.03. Primary Business. The exploration for, and
production and marketing of, Hydrocarbons will continue to be the primary
business of the Company and its Subsidiaries taken as whole.
SECTION 5.04. Insurance. The Company will maintain, and will
cause each Subsidiary to maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and reputable insurance
companies, insurance on their property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business; and
will furnish to the Banks, upon written request from the Agent, full
information as to the insurance carried.
SECTION 5.05. Debt. (a) Consolidated Debt will at no time
exceed $750,000,000 minus the aggregate of all Excess Net Sales Proceeds with
respect to all Asset Sales made at or prior to such time.
(b) At no time will Restricted Subsidiaries Recourse Debt exceed
$75,000,000.
(c) Consolidated Debt will not, on the last day of any calendar
quarter, exceed 3.75 times Operating Cash Flow for the four calendar quarters
ending on such day.
(d) Neither the Company nor any Restricted Subsidiary will create,
assume or otherwise incur any Debt if at the time of creation, assumption or
incurrence of such Debt or after giving effect to the creation, assumption or
incurrence of such Debt, any Event of Default would exist; provided that the
Company or any Restricted Subsidiary may renew or extend (but not increase) its
own Debt.
SECTION 5.06. Restricted Payments. Neither the Company nor
any Subsidiary shall declare or make any
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Restricted Payment unless, immediately prior thereto and immediately
thereafter, no Event of Default shall have occurred and be continuing. Neither
the Company nor any Subsidiary shall make any Restricted Transfer unless,
immediately prior thereto and immediately thereafter, no Event of Default shall
have occurred and be continuing, provided that the Company or any Subsidiary
can make Restricted Transfers in the form of Investments in an Affiliate,
Unrestricted Subsidiary or subsidiary of an Unrestricted Subsidiary if (i) such
Affiliate, Unrestricted Subsidiary or subsidiary, as the case may be, has no
outstanding Debt at the time of such Investment and does not thereafter create,
assume or otherwise incur any Debt while any Event of Default is continuing and
(ii) the Company notifies the Banks of any such Investment in excess of
$5,000,000 at least ten days prior to such Investment. Nothing in this Section
shall prohibit the payment of any dividend or distribution within 45 days after
the declaration thereof if payment of such dividend or distribution was not
prohibited by this Agreement at the time such declaration was made.
SECTION 5.07. Negative Pledge. Neither the Company nor any
Restricted Subsidiary will create, assume or suffer to exist (i) any Lien on
any capital stock or other ownership interest of any Restricted Subsidiary now
owned or hereafter acquired by it or any Lien on any option, warrant or other
right to acquire any capital stock or other ownership interest of any
Restricted Subsidiary now owned or hereafter acquired by it, other than those
described in Part A of Schedule III or (ii) any Lien on any other asset now
owned or hereafter acquired by it, except for the following Liens on assets not
referred to in the foregoing clause (i) of this Section:
(a) Liens existing on the date of this Agreement,
securing Debt outstanding and other obligations (including contractual
obligations) existing on the date of this Agreement and, except in the
case of inchoate operator's Liens, described in Part B of Schedule III
hereto;
(b) any Lien (i) on any Non-Restricted Asset securing
only Non-Restricted Asset Non-Recourse Debt of the Company or any
Restricted Subsidiary or (ii) on any asset of Virginia Indonesia
Company, Virginia International Company or Union Texas East Kalimantan
Limited securing Joint Venture Debt;
(c) mechanics', materialmen's, carriers' and other
statutory Liens, but only if arising, and only so long as continuing,
in the ordinary course of business; or deposits or pledges to obtain
the release of any such
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Lien; or easements, encroachments or other title defects which do not
materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(d) Liens arising in the ordinary course of its business
which (i) do not secure Debt, (ii) do not secure any obligation in an
amount exceeding $15,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(e) Liens on any interest in a Partnership arising under
any agreement creating or governing such Partnership (including
Unimar) and securing only obligations of the members of such
Partnership to make Investments in such Partnership;
(f) Liens arising under any customary provision of any
joint operating agreement or similar agreement relating to the
exploration, production, development or transportation of oil and gas;
(g) Liens not otherwise permitted by the foregoing
clauses of this Section on assets (other than any of the Restricted
Assets) securing Debt in an aggregate principal amount at any time
outstanding not to exceed $20,000,000; and
(h) any Lien securing the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by the
foregoing subsection (a) of this Section, provided that such Debt is
not increased from the lesser of the amount of such Debt set forth on
Schedule III hereto or the amount of such Debt outstanding immediately
prior to such refinancing, extension, renewal or refunding, and such
Lien does not cover any property that is not described on Schedule III
hereto as securing such Debt.
SECTION 5.08. Consolidations and Mergers. The Company will
not consolidate or merge with or into any Person, provided that the Company may
merge with another Person if the Company is the surviving corporation and,
immediately after such merger (and giving effect thereto), no Default shall
have occurred and be continuing.
SECTION 5.09. Use of Proceeds. The proceeds of the Loans
made under this Agreement will be used by the Company for general corporate
purposes; provided that none of such proceeds will be used in any manner or for
any purpose that
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results in any violation of any applicable law or regulation (including,
without limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System).
SECTION 5.10. Parties to Subsidiary Guaranty Agreement. The
Company shall cause each Person that shall at any time after the date of this
Agreement become a Required Guarantor to enter into the Subsidiary Guaranty
Agreement and deliver, not later than 30 days after the date on which such
Person shall have become a Required Guarantor, to the Agent, in addition to a
duly executed counterpart of the Subsidiary Guaranty Agreement, duly executed
documents, in form and substance satisfactory to the Agent, of the type
referred to in Section 3.01(c), (d), (e), (g) and (h) pertaining to such
Required Guarantor and the Subsidiary Guaranty Agreement executed by it. Upon
any sale or other disposition of all of the capital stock of a Required
Guarantor in an Asset Sale permitted by Section 5.14, so long as no Default
exists, such Required Guarantor shall be released from its obligations under
the Subsidiary Guaranty Agreement, and the Agent shall execute such releases
and other documents as such Subsidiary or the Company may reasonably request to
further evidence such release.
SECTION 5.11. Restrictions on Dividends, Intercompany Loans,
or Investments. The Company will not create or otherwise cause or permit to
exist or become effective, or permit any Subsidiary to create or otherwise
cause or permit to exist or become effective, any consensual encumbrance or
restriction (other than the Financing Documents) on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its capital stock or other ownership interests or pay any Debt or other
obligation owed to the Company or any Restricted Subsidiary, or (ii) make any
loans or advances to or other Investments in the Company or any Restricted
Subsidiary, except any encumbrance or restriction in effect on the date of this
Agreement and described on Schedule IV hereto.
SECTION 5.12. Loans and Advances. The Company will not make
or permit to remain outstanding any cash loan or advance to any Person, or
permit any Restricted Subsidiary to make or permit to remain outstanding any
cash loan or advance to any Person, except (i) loans and advances to
Subsidiaries or joint ventures, partnerships or other business ventures in
which the Company or any Subsidiary has or is contemporaneously acquiring an
interest or participation; and (ii) other loans and advances not exceeding
$10,000,000 at any time outstanding.
SECTION 5.13. Cross-Default. The Company will not create,
assume, otherwise incur or suffer to exist, or permit
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any Restricted Subsidiary to create, assume, otherwise incur or suffer to
exist, any Debt if the maturity of such Debt is or may be accelerated (assuming
the giving of notice or lapse of time or both), in whole or in part, as a
result of any default under, or acceleration of (i) any Non-Recourse Debt of
the Company or any Restricted Subsidiary or (ii) any Debt of any Unrestricted
Subsidiary, unless the Required Banks shall have given their prior written
consent to such Debt of the Company or Restricted Subsidiary to be so created,
assumed or otherwise incurred, which consent will not be unreasonably withheld;
provided that this Section 5.13 shall not prohibit a provision in a Guarantee
of the Company or a Restricted Subsidiary Guaranteeing Debt of an Unrestricted
Subsidiary that provides that the payment obligation under such Guarantee may
be accelerated upon default under or acceleration of such Debt.
SECTION 5.14. Subsidiaries. The Company will at all times
own, either directly or through one or more Restricted Subsidiaries, free and
clear of all Liens (other than those permitted by Section 5.07), 100% of all
issued and outstanding capital stock (other than directors' qualifying shares
and shares beneficially owned by the Company or a Restricted Subsidiary and
held by nominees of the Company or a Restricted Subsidiary solely to satisfy
requirements of local law) and other ownership interests of each Restricted
Subsidiary and all options, warrants and other rights to acquire any such
capital stock or any such ownership interest, except for (i) Unimar and the
Unimar Restricted Subsidiaries, (ii) any Restricted Subsidiary sold or
otherwise disposed of pursuant to an Asset Sale, if after giving effect to such
Asset Sale, the Company does not own, directly or indirectly, any interest in
such Restricted Subsidiary, and (iii) those options described on Schedule VI.
The Company will at all times own, either directly or through one or more
Restricted Subsidiaries, free and clear of all Liens (other than those
permitted by Section 5.07), 50% or more of the ownership interest in Unimar and
the Unimar Restricted Subsidiaries and all options, warrants and other rights
to acquire any such ownership interest (other than those described on Schedule
VI); provided that the Company and the Restricted Subsidiaries may sell all of
their ownership interest in Unimar and the Unimar Restricted Subsidiaries and
such options, warrants and other rights if, after giving effect to such sale,
the Company does not own, directly or indirectly, any interest in Unimar, the
Unimar Restricted Subsidiaries or any such option, warrant or other right. The
Company will not at any time permit any Restricted Subsidiary that is not a
Unimar Restricted Subsidiary to become a Unimar Restricted Subsidiary. The
Company will not permit any Restricted Asset
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to be sold, leased, transferred or otherwise disposed of to any Person that was
an Unrestricted Subsidiary immediately prior thereto if any Default then exists
or would result. The Company will not permit any Restricted Subsidiary to
issue any preferred stock unless such preferred stock at all times is owned
only by the Company. The Company will not permit any Restricted Subsidiary to
own, directly, both (a) any UK Asset and (b) any Non-UK Asset.
SECTION 5.15. Adjusted Equity and Interest Coverage. The
Company will at all times maintain Adjusted Equity of $300,000,000 or more.
The Company will cause EBITDA for each period of four consecutive calendar
quarters to exceed 4.00 times Cash Interest Expense for such period.
SECTION 5.16. Excluded Subordinated Debt and Preferred Stock.
Neither the Company nor any Subsidiary will pay, prepay, purchase, redeem,
defease, acquire, exchange or convert any preferred stock (other than
Restricted Preferred Stock) or any Excluded Subordinated Debt, except (a)
exchanges for or conversions to common stock of the Company, (b) payments of
interest when due required by the terms of any such Excluded Subordinated Debt
as such terms are in effect on the date such Excluded Subordinated Debt is
incurred and (c) if no Event of Default exists, payments of ordinary periodic
dividends (excluding liquidating dividends) on such preferred stock in
accordance with the terms thereof as such terms are in effect on the date such
preferred stock is issued.
SECTION 5.17. Certain Obligations. Neither the Company nor
any Subsidiary will create, incur, assume or suffer to exist any obligation on
its part to make any payment on the Joint Venture Debt other than (a) the
obligations set forth in the agreements listed on Schedule V hereto with
respect to Joint Venture Debt in existence on the date of this Agreement and
(b) obligations substantially similar to those referred to in clause (a) with
respect to Joint Venture Debt created, incurred, assumed or arising after the
date of this Agreement.
SECTION 5.18. Restrictions on Asset Sales. (a) The Company
will not and will not permit any of its Restricted Subsidiaries to enter into
any Asset Sale if after giving effect thereto any Event of Default would exist.
(b) The Company will not permit to occur any Asset Sale involving,
directly or indirectly, any UK Assets if the aggregate Net Sales Proceeds of
all Asset Sales involving,
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directly or indirectly, UK Assets since December 31, 1993 would exceed
$250,000,000.
SECTION 5.19. UTEK Guaranty. The Company will cause Union
Texas East Kalimantan Limited to report, as promptly as reasonably practicable,
the execution and delivery of the Subsidiary Guaranty Agreement to the
Indonesian Foreign Commercial Loan Team ("Team") established pursuant to
Indonesian Presidential Decree No. 39 of 1991 and to deliver, as promptly as
reasonably practicable, to the Team and to Bank Indonesia copies of this
Agreement and the Subsidiary Guaranty Agreement.
SECTION 5.20. Conversion to Unrestricted Subsidiary. The
Company may convert a Restricted Subsidiary into an Unrestricted Subsidiary by
giving the Agent notice of such conversion at least 5 Domestic Business Days
prior to such conversion, provided that (i) no Restricted Subsidiary shall be
so converted so long as it owns directly or indirectly any interest in any
Restricted Asset and (ii) no such conversion shall be made if at the time of
such notice or after giving effect to such conversion, any Default would exist.
Upon any such conversion of a Required Guarantor to an Unrestricted Subsidiary
such Subsidiary shall be released from its obligations under the Subsidiary
Guaranty Agreement, and the Agent shall execute such releases and other
documents as such Subsidiary or the Company may reasonably request to further
evidence such release.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Company shall fail to pay when due any principal
of any Loan, or shall fail to pay within five days of the due date
thereof any interest on any Loan, any fees or any other amount payable
hereunder;
(b) the Company or any Subsidiary shall fail to observe
or perform any covenant contained in Sections 5.05 to 5.18, inclusive;
(c) the Company or any Subsidiary shall fail to observe
or perform any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above) or in the
Subsidiary Guaranty Agreement for 30
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days after written notice thereof has been given to the Company by the
Agent at the request of any Bank;
(d) any representation, warranty, certification or
statement made by the Company or any Subsidiary in this Agreement or
in the Subsidiary Guaranty Agreement or made in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Restricted Subsidiary shall fail
to make any payment in respect of any Material Debt (other than the
Notes) when due or within any applicable grace period;
(f) any event or condition shall occur which results in
the acceleration of the maturity of any Material Debt of the Company
or any Restricted Subsidiary (other than the Notes) or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holder of such Material Debt or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(g) the Company or any Restricted Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Company or any Restricted Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days;
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or an order for relief shall be entered against the Company or any
Restricted Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $5,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(j) a judgment or order for the payment of money in
excess of $15,000,000 (net of applicable insurance coverage which is
acknowledged by the insurer) shall be rendered against the Company or
any Restricted Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days;
(k) any Person or two or more Persons acting in concert,
together with any affiliates thereof, (i) shall have acquired
beneficial ownership, directly or indirectly, (a) within any 12 month
period, of (1) more than 25% of the Company's common stock or (2)
securities representing more than 25% of the combined voting power of
all securities of the Company entitled to vote in the election of
directors (other than securities having such power only by reason of
the happening of a contingency) ("Voting Securities"), or (b) within
any 24 month period, of (1) more than 40% of the Company's common
stock or (2) more than 40% of the Company's Voting Securities, (ii)
owns a higher percentage of the Company's common stock or Voting
Securities than the percentage owned by Kohlberg Kravis Roberts & Co.
and/or non-operating investment entities it controls, and (iii) either
(a) owns 50% or more of the Company's common stock or Voting
Securities, (b) directly or indirectly elects or causes the election
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of Persons constituting in the aggregate a majority of the Board of
Directors of the Company or any Restricted Subsidiary, or (c)
exercises, directly or indirectly, by written agreement, control over
the Company or any Restricted Subsidiary; provided that no Default or
Event of Default shall occur under this subsection (k) until the
Agent, following request by the Required Banks, gives notice to the
Company that such an Event of Default is declared, and such notice may
not be given after the date which is 45 days after the Banks actually
receive notice from the Company to the effect that the matters set
forth in clauses (i), (ii) and (iii) have occurred (for purposes of
this provision, "beneficial ownership" shall mean beneficial ownership
within the meaning of Rule 13d-3 of the Securities and Exchange
Commission promulgated under the Securities Exchange Act of 1934, as
amended, and the number and percentage of securities beneficially
owned by any Person or Persons shall be calculated in accordance with
such Rule); or
(l) any "Event of Default", as defined in the Short-Term
Credit Agreement, shall occur;
then, and in every such event, the Agent shall (i) if requested by Banks having
at least 51% in the aggregate amount of the Commitments, by notice to the
Company terminate the Commitments and, upon the giving of such notice by the
Agent, they shall thereupon terminate, and (ii) if requested by Banks holding
Notes evidencing at least 51% in aggregate principal amount of the Loans, by
notice to the Company declare the Notes (together with accrued interest
thereon) to be, and, upon the giving of such notice by the Agent, the Notes
shall thereupon become, immediately due and payable without notice of intent to
accelerate, notice of acceleration, presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company; provided
that in the case of any of the Events of Default specified in clause (g) or (h)
above, without any notice to the Company or any other act by the Agent or the
Banks, the Commitments shall thereupon terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
notice of intent to accelerate, notice of acceleration, presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Company.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Company under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Financing Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. Each Bank hereby consents and
agrees to the terms of, and authorizes and directs the Agent to enter into, the
Subsidiary Guaranty Agreement.
SECTION 7.02. Agent and Affiliates. NationsBank shall have
the same rights and powers under the Financing Documents as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent, and NationsBank and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Company or any
Subsidiary or other affiliate of the Company as if it were not the Agent
hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
under the Financing Documents are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default, except as expressly
provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may
consult with legal counsel (who may be counsel for the Company or any
Subsidiary), independent public accountants, independent petroleum engineers
and other experts selected by it and the Agent shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants, engineers or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Company
or any Subsidiary; (iii) the satisfaction of any condition specified in Article
III, except
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receipt of items required to be delivered to the Agent; (iv) the validity,
effectiveness or genuineness of the Financing Documents or any other instrument
or writing furnished in connection herewith; or (v) the accuracy of any
Engineering Report. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with the Financing Documents or any action
taken or omitted by the Agent hereunder (IT BEING EXPRESSLY UNDERSTOOD AND
AGREED THAT, EXCEPT FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS
NEGLIGENCE, SUCH INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE
ORDINARY NEGLIGENCE, WHETHER SOLE OR CONTRIBUTORY, OF THE AGENT).
SECTION 7.07. Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Company and may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Company shall have the right, with the consent of
the Required Banks, to appoint a successor Agent. If no successor Agent shall
have been so appointed with the consent of the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Banks' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $50,000,000. Upon
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the acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Financing Documents.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fees. The Company shall pay to the
Agent for its own account fees in the amounts and at the times previously
agreed upon between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered
to the Reference Banks in the relevant market for such Interest
Period, or
(b) in the case of a Committed Borrowing, Banks having
50% or more of the aggregate amount of the Commitments advise the
Agent that the London Interbank Offered Rate as determined by the
Agent will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, (1) the obligations of the Banks to
make Euro-Dollar Loans, or make any Conversion (other than changing Euro-Dollar
Loans into Base Rate Loans), shall be suspended, and (2) unless the Company
notifies the Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Fixed Rate Borrowing is
a Committed Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing,
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the Money Market LIBOR Loans comprising such Borrowing shall bear interest for
each day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the sum of the Base Rate for such day
plus at such times as the Margin Increase Condition exists and the Additional
Margin Increase Condition does not exist, 1/8% plus at such times as the
Additional Margin Increase Condition exists, 1/4% plus at such times as any
Event of Default exists, 1%.
SECTION 8.02. Illegality. If, after (x) the date of this
Agreement, in the case of any Euro-Dollar Loan or (y) the date of the related
Money Market Quote, in the case of any Money Market LIBOR Loan, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro- Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans or Money Market LIBOR Loans, as the case
may be, or make any Conversion (other than changing Euro-Dollar Loans into Base
Rate Loans), and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and the Company, whereupon until such
Bank notifies the Company and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make
Euro-Dollar Loans, or make any Conversion (other than changing Euro-Dollar
Loans into Base Rate Loans), or make Money Market LIBOR Loans, as the case may
be, shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any
of its outstanding Euro-Dollar Loans or Money Market LIBOR Loans, as the case
may be, to maturity and shall so specify in such notice, the Company shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan or Money Market LIBOR Loan as the case may be, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Company shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If
after (x) the date hereof, in the case of any Committed Loan or any obligation
to make Committed Loans or (y) the date of the related Money Market Quote, in
the case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans, or
shall change the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest on its
Fixed Rate Loans or any other amounts due under this Agreement in
respect of its Fixed Rate Loans or its obligation to make Fixed Rate
Loans (except for changes in the rate of tax on the overall net income
of such Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable Lending Office) or
on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan or
making any Conversion (other than changing Euro-Dollar Loans into Base Rate
Loans), or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after
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demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction; provided that the Company shall not be obligated
to compensate any Bank for any such reduction attributable to a period (i) more
than 90 days prior to the giving of notice by such Bank to the Company of its
intention to seek compensation under this subsection (a) or (ii) more than six
months prior to the making of demand by such Bank for payment thereof in
accordance herewith.
(b) If any Bank shall have determined that the adoption
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided that the
Company shall not be obligated to compensate any Bank for any such reduction
attributable to a period (i) more than 90 days prior to the giving of notice by
such Bank to the Company of its intention to seek compensation under this
subsection (b) or (ii) more than six months prior to the making of demand by
such Bank for payment thereof in accordance therewith.
(c) Each Bank will promptly notify the Company and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
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SECTION 8.04. Base Rate Loans Substituted for Affected Fixed
Rate Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Company has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) and the Company shall, by at least
five Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Loans to the Company which would otherwise be
made by such Bank as, or be Converted by such Bank as or into,
Euro-Dollar Loans shall instead be made as, or Converted into, Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its Euro-Dollar Loans to the Company
has been repaid, all payments of principal which would otherwise be
applied to repay such Fixed Rate Loans shall be applied to repay its
Base Rate Loans instead.
SECTION 8.05. Substitution of Bank. If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02,
(ii) any Bank has demanded compensation under Section 8.03 or payment of Taxes
or Other Taxes under Section 2.17, or (iii) after satisfaction of all
applicable conditions precedent, any Bank fails to fund when due any Committed
Loan it is obligated to fund under this Agreement, the Company shall have the
right, with the assistance of the Agent, to seek a mutually satisfactory
substitute bank or banks (which may be one or more of the Banks) to purchase
the Notes and assume the Commitment of such Bank (any such Bank is herein
called an "Affected Bank"). Each Affected Bank agrees to sell, without
recourse, all of its Commitment, its interest in this Agreement and its Note to
any such bank for an amount equal to the sum of the outstanding unpaid
principal of and accrued interest on the Loans of such Affected Bank and all
commitment fees and other fees and amounts due such Affected Bank hereunder,
calculated, in each case, to the date such Commitment, interest in this
Agreement and Note are purchased.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Company or the Agent, at its address or telex
number set forth on the signature pages hereof, (y) in the case of any Bank, at
its address or telex number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answer-back is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (iii) if given by facsimile
transmission, when such facsimile is transmitted and accompanied by a telephone
call to the party receiving such transmission or (iv) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent
or any Bank in exercising any right, power or privilege under any Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in
the Financing Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Company
shall pay (i) all reasonable documented out-of-pocket costs and expenses of the
Agent and the Arranger incurred in connection with the syndication of this
Agreement or the preparation of the Financing Documents, any waiver or consent
thereunder or any amendment thereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket costs and
expenses incurred by the Agent or incurred by any Bank, including fees and
disbursements of counsel, in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom.
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(b) The Company agrees to indemnify the Agent, each
Co-Agent, the Arranger and each Bank and hold the Agent, each Co-Agent, the
Arranger and each Bank harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind (including, without limitation,
the reasonable fees and disbursements of counsel for the Agent, any Co-Agent,
the Arranger or any Bank in connection with any investigative, administrative
or judicial proceedings, whether or not the Agent, such Co-Agent, the Arranger
or such Bank, as the case may be, shall be designated a party thereto) which
may be incurred by the Agent, any Co- Agent, the Arranger or any Bank, relating
to or arising out of this Agreement or any actual or proposed use of proceeds
of Loans hereunder, including specifically, without limitation, all
liabilities, losses, damages, costs and expenses arising out of a violation of
any Environmental Law; provided, that neither the Agent nor any Co-Agent nor
the Arranger nor any Bank shall have the right to be indemnified hereunder for
its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction (IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT, EXCEPT
FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS NEGLIGENCE, SUCH
INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE ORDINARY NEGLIGENCE,
WHETHER SOLE OR CONTRIBUTORY, OF THE INDEMNITEE).
(c) Within a reasonable period of time after any Person
entitled to indemnification under Section 9.03(b) (an "Indemnified Person")
receives actual notice of the assertion of any claim or the commencement of any
action, or any threatened claim or action, covered by Section 9.03(b), such
Indemnified Person shall, if indemnification with respect thereof is to be
sought from the Company under Section 9.03(b), notify the Company in writing of
such claim or action; provided that the failure to so notify the Company shall
not relieve the Company from any liability which the Company may have to the
Indemnified Person under Section 9.03(b) unless the obligations of the Company
under Section 9.03(b) have been significantly increased as a result of such
failure. The Company and such Indemnified Person shall cooperate in the
defense of any such claim or action and shall take those actions reasonably
within their power to take which are necessary to preserve any legal defenses
to such matters. If any such claim or action shall be brought or threatened
against an Indemnified Person, so long as no Event of Default exists, the
Company shall be entitled to participate in the defense thereof, and, with the
consent of such Indemnified Person, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Person. Notwithstanding any
provision hereof to the contrary, no consent order or settlement shall be
entered into in any such claim or action
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<PAGE> 86
unless both the Company and such Indemnified Person have given their prior
written consent thereto, provided that such consent of the Company shall not be
required if any Event of Default exists.
(d) All obligations of the Company to indemnify or
otherwise to make payments to the Agent, any Co-Agent, the Arranger or any Bank
provided in this Agreement shall survive any termination of the Commitments and
the repayment of the Loans.
SECTION 9.04. Sharing of Set-Offs, Etc. Each Bank agrees
that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Company other than its indebtedness under the Notes. The Company agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Company in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived, if, but only if, such
amendment or waiver is in writing and is signed by the Company and the Required
Banks (and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) increase or decrease the Commitment of any Bank or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or
for any reduction or termination of any Commitment, or (iv) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required for the
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Banks or any of them to take any action under this Section or any other
provision of this Agreement; provided further that no such amendment or waiver
shall amend or waive Section 5.05(a) or any of the definitions relevant to
Section 5.05(a) unless signed by Banks having at least 66-2/3% of the aggregate
amount of the Commitments or, if the Commitments shall have been terminated,
holding Notes evidencing at least 66-2/3% of the aggregate unpaid principal
amount of the Loans.
SECTION 9.06. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Company may
not assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Banks.
(b) Any Bank may at any time and from time to time grant
to one or more banks or other institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Company and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section 9.05 without the
consent of the Participant. The Company agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the benefits
of Article VIII with respect to its participating interest. An assignment or
other transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks
or other institutions (each an "Assignee") a proportionate part of all of its
rights and obligations under this Agreement and the Notes in an amount which,
when added to the amount of the rights and obligations under the Short-Term
Credit Agreement contemporaneously assigned by such transferor Bank to such
Assignee pursuant to the second proviso to the first sentence of Section
9.06(c) of the Short-Term Credit
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Agreement, equals $10,000,000 or more, and such Assignee shall assume such
rights and obligations under this Agreement and the Notes, pursuant to an
Assignment executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Company and the Agent (which such
consents shall not be unreasonably withheld); provided that if an Assignee is
an affiliate of such transferor Bank or is another Bank, no such consent of the
Company shall be required; provided further that each such assignment shall be
of a constant, and not a varying, percentage of all rights and obligations
under this Agreement and the Notes, and the same constant percentage of all
rights and obligations of such transferor Bank under the Short-Term Credit
Agreement and the notes thereunder shall be contemporaneously assigned by such
transferor Bank to such Assignee pursuant to Section 9.06(c) of the Short-Term
Credit Agreement. Upon execution and delivery of such instrument (and delivery
to the Agent of an Administrative Questionnaire with respect to such Assignee,
if such Assignee has not already done so) and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Company shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee. In connection with
any such assignment, the transferor Bank shall pay to the Agent for its account
an administrative fee in the amount of $2,500 for processing such assignment.
If the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall, prior to the first date on which interest
or fees are payable hereunder for its account, deliver to the Company and the
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 2.17. Notwithstanding
the first sentence of this subsection (c), a Bank may not make an assignment
pursuant to this subsection (c) if after giving effect thereto such Bank would
hold less than 1.5% (or until May 1, 1996, 3% in the case of NationsBank, Bank
of America National Trust and Savings Association and Union Bank of
Switzerland, Houston Agency) of the Commitments (for this purpose such Bank
shall be deemed to hold any participating interests granted by such Bank
pursuant to subsection (b) above and any rights assigned pursuant to subsection
(d) below).
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(d) Any Bank may at any time assign all or any portion of
its rights under this Agreement and its Note to a Federal Reserve Bank. No
such assignment shall release the transferor Bank from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Section
8.03 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02 or 8.03
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to
each Agent and each of the other Banks that it in good faith is not relying
upon any margin stock (as defined in Regulation G) or any margin stock (as
defined in Regulation U) as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION 9.08. Texas Law. This Agreement and each Note
shall be construed in accordance with and governed by the law of the State of
Texas.
SECTION 9.09. CONSENT TO JURISDICTION. THE COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF TEXAS AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE OVER IT IN
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
FINANCING DOCUMENT AND, TO THE FULLEST EXTENT PERMITTED BY LAW, FURTHER AGREES
(AND SHALL NOT CONTEST) THAT THE PROPER VENUE FOR FILING AND MAINTAINING ANY
SUCH ACTION OR PROCEEDING SHALL BE IN THE STATE OF TEXAS. IN ANY SUCH ACTION
OR PROCEEDING, THE COMPANY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS OR NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN
RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS FOR NOTICES HEREUNDER, OR ANY
FORM OF SERVICE PROVIDED FOR IN THE TEXAS CIVIL PRACTICE AND REMEDIES CODE THEN
IN EFFECT SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON THE COMPANY.
SECTION 9.10. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.11. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT,
THE CO-AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL
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<PAGE> 90
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 9.12. COMPLETE AGREEMENT. THIS WRITTEN CREDIT
AGREEMENT AND THE OTHER FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
SECTION 9.13. Liability of Co-Agents and Arranger. Neither
the Arranger nor either Co-Agent, in its capacity as Co-Agent hereunder, shall
have any duty or responsibility hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
UNION TEXAS PETROLEUM
HOLDINGS, INC.
By _______________________________
Title: Vice President and Treasurer
1330 Post Oak Blvd.
Houston, Texas 77056
Telex number: 762255
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<PAGE> 91
Commitments
$28,636,363.63 NATIONSBANK OF TEXAS, N.A.
By _____________________________
Paul A. Squires
Senior Vice President
$22,272,727.27 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ____________________________
Authorized Officer
$22,272,727.27 UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$19,090,909.09 THE FIRST NATIONAL BANK OF CHICAGO
By ____________________________
Authorized Officer
$19,090,909.09 CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By _____________________________
Authorized Officer
$19,090,909.09 MELLON BANK, N.A.
By ____________________________
Authorized Officer
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<PAGE> 92
Commitments
$19,090,909.09 THE BANK OF NOVA SCOTIA
By ____________________________
Authorized Officer
$19,090,909.09 CHEMICAL BANK
By ____________________________
Authorized Officer
$15,909,090.91 LTCB TRUST COMPANY
By ____________________________
Authorized Officer
$15,909,090.91 SOCIETE GENERALE, SOUTHWEST AGENCY
By ____________________________
Authorized Officer
$15,909,090.91 BANQUE NATIONALE DE PARIS, HOUSTON
AGENCY
By ____________________________
Authorized Officer
$6,363,636.36 FIRST INTERSTATE BANK OF TEXAS, N.A.
By ____________________________
Authorized Officer
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Commitments
$11,136,363.64 THE MITSUBISHI TRUST & BANKING
CORPORATION
By ____________________________
Authorized Officer
$19,090,909.09 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By ____________________________
Authorized Officer
$11,136,363.64 BANQUE PARIBAS, HOUSTON AGENCY
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$11,136,363.64 THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH
By ____________________________
Authorized Officer
$11,136,363.64 CITIBANK, N.A.
By ____________________________
Authorized Officer
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Commitments
$11,136,363.64 NATIONAL WESTMINSTER BANK PLC
By ____________________________
Authorized Officer
$11,136,363.64 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By ____________________________
Authorized Officer
$6,363,636.36 DEN NORSKE BANK AS
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$6,363,636.36 BANK OF TAIWAN
By ____________________________
Authorized Officer
$11,136,363.64 BANK OF TOKYO, LTD., DALLAS AGENCY
By ____________________________
Authorized Officer
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Commitments
$11,136,363.64 CHRISTIANIA BANK
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$6,363,636.36 BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By ____________________________
Authorized Officer
Total Commitments: $350,000,000
=========================
NATIONSBANK OF TEXAS, N.A.,
as Agent
By _______________________________
Paul A. Squires
Senior Vice President
700 Louisiana Street
Houston, Texas 77002
Telex Number: 163244
Answerback: NCNBTEXDAL
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent
By _______________________________
Authorized Officer
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<PAGE> 96
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY, as Co-Agent
By _______________________________
Authorized Officer
By _______________________________
Authorized Officer
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<PAGE> 97
SCHEDULE I
COMMITMENT REDUCTION SCHEDULE
Date Maximum Aggregate Commitments
---- -----------------------------
July 31, 1997 $325,000,000
October 31, 1997 300,000,000
January 31, 1998 275,000,000
April 30, 1998 -0-
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<PAGE> 1
Exhibit 10.2
$200,000,000
CREDIT AGREEMENT
dated as of
May 13, 1994
among
UNION TEXAS PETROLEUM HOLDINGS, INC.
The BANKS Listed Herein
and
NATIONSBANK OF TEXAS, N.A.
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
as Co-Agents
THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.06 AND 9.03(B) OF THIS
AGREEMENT INCLUDE INDEMNIFICATION FROM THE CONSEQUENCES OF THE
NEGLIGENCE OF THE PERSONS INDEMNIFIED THEREBY TO THE EXTENT SET FORTH
THEREIN
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and
Determinations . . . . . . . . . . . . . . . . . . 23
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . . . . . 24
SECTION 1.04. Miscellaneous . . . . . . . . . . . . . . . . . . . 24
SECTION 1.05. Unimar. . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.06. Ratings. . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II
THE CREDITS . . . . . . . . . . . 25
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . . 25
SECTION 2.02. Notice of Borrowings . . . . . . . . . . . . . . . 25
SECTION 2.03. Conversions . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.04. Notice to Banks; Funding of Loans . . . . . . . . . 27
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . . . . . 29
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . . . . . 29
SECTION 2.08. Fees . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.09. Optional Termination or Reduction
of Commitments . . . . . . . . . . . . . . . . . . 32
SECTION 2.10. Mandatory Termination or Reduction
of Commitments . . . . . . . . . . . . . . . . . . 32
SECTION 2.11. Optional Prepayments . . . . . . . . . . . . . . . 32
SECTION 2.12. General Provisions as to Payments . . . . . . . . . 33
SECTION 2.13. Funding Losses . . . . . . . . . . . . . . . . . . 33
SECTION 2.14. Computation of Interest and Fees . . . . . . . . . 34
SECTION 2.15. Chapter 15 . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.16. Maximum Interest Rate . . . . . . . . . . . . . . . 34
SECTION 2.17. Taxes . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE III
CONDITIONS . . . . . . . . . . . 38
SECTION 3.01. Initial Borrowing . . . . . . . . . . . . . . . . . 38
SECTION 3.02. All Borrowings . . . . . . . . . . . . . . . . . . 39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . 40
SECTION 4.01. Corporate Existence and Power . . . . . . . . . . . 40
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<PAGE> 3
SECTION 4.02. Corporate and Governmental
Authorization; Contravention . . . . . . . . . . . 40
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . 41
SECTION 4.04. Information . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.06. Compliance with ERISA . . . . . . . . . . . . . . . 42
SECTION 4.07. Environmental Matters . . . . . . . . . . . . . . . 43
SECTION 4.08. Subsidiaries . . . . . . . . . . . . . . . . . . . 43
SECTION 4.09. Ownership of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . 43
SECTION 4.10. Title to Properties . . . . . . . . . . . . . . . . 44
SECTION 4.11. Taxes and Other Obligations . . . . . . . . . . . . 44
SECTION 4.12. Regulation U . . . . . . . . . . . . . . . . . . . 44
SECTION 4.13. Certain Obligations . . . . . . . . . . . . . . . . 45
SECTION 4.14. United Kingdom Assets . . . . . . . . . . . . . . . 45
ARTICLE V
COVENANTS . . . . . . . . . . . . 45
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.02. Affirmative Covenants . . . . . . . . . . . . . . . 50
SECTION 5.03. Primary Business . . . . . . . . . . . . . . . . . 51
SECTION 5.04. Insurance . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.05. Debt . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.06. Restricted Payments . . . . . . . . . . . . . . . . 52
SECTION 5.07. Negative Pledge . . . . . . . . . . . . . . . . . . 52
SECTION 5.08. Consolidations and Mergers . . . . . . . . . . . . 54
SECTION 5.09. Use of Proceeds . . . . . . . . . . . . . . . . . . 54
SECTION 5.10. Parties to Subsidiary Guaranty
Agreement . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.11. Restrictions on Dividends,
Intercompany Loans, or Investments . . . . . . . . 54
SECTION 5.12. Loans and Advances . . . . . . . . . . . . . . . . 55
SECTION 5.13. Cross-Default . . . . . . . . . . . . . . . . . . . 55
SECTION 5.14. Subsidiaries . . . . . . . . . . . . . . . . . . . 55
SECTION 5.15. Adjusted Equity and Interest
Coverage . . . . . . . . . . . . . . . . . . . . . 56
SECTION 5.16. Excluded Subordinated Debt and
Preferred Stock . . . . . . . . . . . . . . . . . . 56
SECTION 5.17. Certain Obligations . . . . . . . . . . . . . . . . 56
SECTION 5.18. Restrictions on Asset Sales . . . . . . . . . . . . 57
SECTION 5.19. UTEK Guaranty . . . . . . . . . . . . . . . . . . . 57
SECTION 5.20. Conversion to Unrestricted
Subsidiary . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VI
DEFAULTS . . . . . . . . . . . . 58
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . 58
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<PAGE> 4
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . 61
ARTICLE VII
THE AGENT . . . . . . . . . . . . 61
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . 61
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . . . . . 61
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . . . . . 61
SECTION 7.04. Consultation with Experts . . . . . . . . . . . . . 62
SECTION 7.05. Liability of Agent . . . . . . . . . . . . . . . . 62
SECTION 7.06. Indemnification . . . . . . . . . . . . . . . . . . 62
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . . . . . 62
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . . . . . 63
SECTION 7.09. Agent's Fees . . . . . . . . . . . . . . . . . . . 63
ARTICLE VIII
CHANGE IN CIRCUMSTANCES . . . . . . . . . 63
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . . . . . 63
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . . 65
SECTION 8.04. Base Rate Loans Substituted for
Affected Euro-Dollar Loans . . . . . . . . . . . . 67
SECTION 8.05. Substitution of Bank . . . . . . . . . . . . . . . 67
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . 67
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.03. Expenses; Indemnification . . . . . . . . . . . . . 68
SECTION 9.04. Sharing of Set-Offs, Etc. . . . . . . . . . . . . . 70
SECTION 9.05. Amendments and Waivers . . . . . . . . . . . . . . 70
SECTION 9.06. Successors and Assigns . . . . . . . . . . . . . . 71
SECTION 9.07. Collateral . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.08. Texas Law . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.09. CONSENT TO JURISDICTION . . . . . . . . . . . . . . 73
SECTION 9.10. Counterparts . . . . . . . . . . . . . . . . . . . 73
SECTION 9.11. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 73
SECTION 9.12. COMPLETE AGREEMENT . . . . . . . . . . . . . . . . 73
SECTION 9.13. Liability of Co-Agents and
Arranger . . . . . . . . . . . . . . . . . . . . . 74
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<PAGE> 5
Schedule I - (Not used)
Schedule II - Existing Subsidiaries
Schedule III - Existing Liens
Schedule IV - Existing Restrictions
Schedule V - Joint Venture Debt Agreements
Schedule VI - Outstanding Options
Exhibit A - Note
Exhibit B - Subsidiary Guaranty Agreement
Exhibit C - Opinion of General Counsel of the Company
Exhibit D - Opinion of Special Counsel for the Company
Exhibit E - Opinion of Special Counsel for the Agent
Exhibit F - Assignment and Assumption Agreement
Exhibits G-1 and G-2 - Forms of Local Counsel Opinions
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<PAGE> 6
CREDIT AGREEMENT
Credit Agreement dated as of May 13, 1994 among Union Texas
Petroleum Holdings, Inc., the Banks party hereto, NationsBank of Texas, N.A.,
as Agent, and Bank of America National Trust and Savings Association and Union
Bank of Switzerland, Houston Agency, as Co-Agents.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Acceptable Engineer" means DeGolyer & MacNaughton or such
other independent engineering firm that is mutually acceptable to the Agent and
the Company.
"Additional Margin Increase Condition" exists at all times
during which any senior unsecured long-term debt of the Company is rated below
BBB- by S&P.
"Adjusted Equity" means the consolidated stockholders equity
of the Company and its Consolidated Subsidiaries, as determined on a
consolidated basis in accordance with generally accepted accounting principles,
adjusted to exclude (i) any cumulative foreign exchange translation
adjustments, (ii) any non-cash write-up or writedown of any assets of the
Company and its Consolidated Subsidiaries made after March 31, 1992 in
accordance with generally accepted accounting principles, and (iii) the non-
cash effect of the adoption of any change after March 31, 1992 required by
generally accepted accounting principles.
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form requested by the Agent
submitted to the Agent (with a copy to the Company) duly completed by such
Bank.
"Affiliate" means (i) any Person holding 5% or more of any
class of capital stock of the Company, and (ii) any Person (other than the
Company, a Subsidiary or a Partnership) directly or indirectly controlling,
controlled by or under common control with any Person described in clause (i).
As used in this definition of "Affiliate", the term "control"
<PAGE> 7
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Agent" means NationsBank in its capacity as agent for the
Banks hereunder and any successor in such capacity.
"Agreement" means this Credit Agreement dated as of May 13,
1994 among the Company, the Banks, the Agent and the Co-Agents, as amended from
time to time in accordance with the terms hereof.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending Office, and (ii)
in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Arranger" means NationsBanc Capital Markets, Inc.
"Asset Sale" means any sale, lease, transfer or other
disposition of any Restricted Asset by the Company or any Restricted
Subsidiary, whether such sale, lease, transfer or other disposition is direct
or indirect (such as by selling capital stock of the Subsidiary that owns such
Restricted Asset, but excluding sales of capital stock of the Company), other
than (i) farm-outs in the ordinary course of business of properties containing
substantially no proved reserves at the time of the farm-out, (ii) sales in the
ordinary course of business of Hydrocarbons after severance, (iii) sales,
transfers, leases or other dispositions of inventory and obsolete or surplus
equipment in the ordinary course of business, and (iv) sales, transfers, leases
or other dispositions to the Company or any Restricted Subsidiary if no Default
then exists or would result therefrom.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment" means an Assignment and Assumption Agreement in
substantially the form of Exhibit F hereto.
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Corporate Base Rate for such
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<PAGE> 8
day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Loan which bears interest as provided
in Section 2.07(a).
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrowing" has the meaning set forth in Section 1.03.
"Cash Interest Expense" means, for any period, the sum of (i)
the aggregate amount accrued during such period by the Company and its
Consolidated Subsidiaries for interest determined on a consolidated basis, but
excluding interest on Non-Recourse Debt and interest on Debt of Unrestricted
Subsidiaries to the extent such Debt does not constitute Debt of the Company or
any Restricted Subsidiary plus (ii) the aggregate amount paid during such
period by the Company and its Consolidated Subsidiaries for dividends on
Restricted Preferred Stock, determined on a consolidated basis.
"Co-Agents" means Bank of America National Trust and Savings
Association and Union Bank of Switzerland, Houston Agency in their capacities
as Co-Agents hereunder.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof (or, if such
Bank is an Assignee and its name is not set forth on the signature pages
hereof, the amount of its Commitment as set forth in the Assignment pursuant to
which it became a Bank), as such amount may be reduced from time to time
pursuant to Sections 2.09 and 2.10 or reduced or increased from time to time
pursuant to any Assignment to which it is a party.
"Company" means Union Texas Petroleum Holdings, Inc., a
Delaware corporation.
"Company's 1993 Form 10-K" means the Company's annual report
on Form 10-K for 1993, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Consolidated Debt" means, at any date, an amount equal to (a)
the sum (without duplication) of (i) the
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<PAGE> 9
aggregate amount of Debt (other than Defeased Debt, Excluded Subordinated Debt
not exceeding $100,000,000 and Debt that would not constitute Debt of the
Company or any of its Consolidated Subsidiaries if clause (viii) were not
included in the definition herein of Debt) of the Company and its Consolidated
Subsidiaries, determined on a consolidated basis as of such date, plus (ii) the
Unimar Percentage at such date of the aggregate Debt (other than Defeased Debt
and Debt that would not constitute Debt of Unimar or any of the Unimar
Restricted Subsidiaries if clause (viii) were not included in the definition
herein of Debt) of Unimar and the Unimar Restricted Subsidiaries, determined on
a consolidated basis as of such date, plus (iii) the Excess Letter of
Credit/Guarantee Amount at such date, minus (b) the sum (without duplication
and only to the extent that any of the following are included in the foregoing
clause (a)) at such date of (1) Debt of Unrestricted Subsidiaries to the extent
such Debt does not constitute Debt of the Company or any Restricted Subsidiary
plus (2) Non-Restricted Asset Non-Recourse Debt plus (3) Existing Pakistan
Non-Recourse Debt.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"Convert", "Conversion" and "Converted" each refers to (i) the
change of Loans of one Type into Loans of the other Type pursuant to Section
2.03 or Article VIII, (ii) the continuation of all Euro-Dollar Loans comprising
the same Borrowing as such for an additional Interest Period pursuant to
Section 2.03, and (iii) an election to change, pursuant to Section 2.03, the
Interest Period applicable to all Euro-Dollar Loans comprising the same
Borrowing prior to the end of the Interest Period then applicable thereto.
"Corporate Base Rate" means a fluctuating interest rate per
annum as shall be in effect from time to time equal to the rate of interest
publicly announced by NationsBank as its base rate, whether or not the Company
has notice thereof. Such rate is set by NationsBank as a general reference
rate of interest, taking into account such factors as NationsBank may deem
appropriate, it being understood that many of NationsBank's commercial or other
loans are priced in relation to such rate, that it is not necessarily the
lowest or best rate actually charged to any customer and that NationsBank may
make various commercial or other loans at rates of interest having no
relationship to such rate.
-4-
<PAGE> 10
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except accrued expenses, trade accounts payable and taxes
payable arising in the ordinary course of business, (iv) the present value,
determined in accordance with generally accepted accounting principles, of the
obligations of such Person to make payments under capital leases, (v) all
obligations of such Person which shall have been outstanding for more than five
days owed to a bank or other Person in respect of amounts theretofore paid
under a letter of credit or similar instrument, (vi) all Debt of others secured
by a Lien on any asset owned by such Person whether or not such Debt is assumed
by such Person (except that Joint Venture Debt shall for purposes of this
Agreement be deemed to be Debt of Pertamina and not of the Company or a
Subsidiary), (vii) all Restricted Preferred Stock issued by such Person or as
to which such Person is otherwise liable, (viii) all Debt of others Guaranteed
by such Person, to the extent of such Guarantee, and (ix) all obligations of
such Person which have been outstanding for more than five days to pay any
margin call (or similar requirement) on any Derivative Transaction (excluding,
in the case of the Company and its Subsidiaries, such obligations not exceeding
$5,000,000 in the aggregate); provided that, neither Debt nor Guarantee
includes (a) obligations under leases other than capital leases and under bona
fide Derivative Transactions (except as provided in clause (ix) above) and
obligations with respect to take-or-pay payments theretofore received which
remain subject to cash settlement or make-up; (b) Debt of the Company or a
Subsidiary owing to the Company or a Subsidiary, except for Debt not eliminated
in consolidation pursuant to the proviso in Section 1.02; (c) obligations under
the Indonesian Participating Units; (d) any preferred stock that does not
constitute Restricted Preferred Stock; and (e) the existing agreements relating
to Joint Venture Debt set forth in the contracts described on Schedule V of the
parties thereto as to allocation of responsibility for damages caused by reason
of an act or failure to act by, or otherwise related to, any such party, or any
similar agreement hereafter entered into providing for a similar allocation of
liability in respect of similar actions or failures to act. The amount of Debt
attributable to any Restricted Preferred Stock shall be the maximum
consideration required to be paid upon the purchase, retirement, redemption,
exchange, or conversion of the portion thereof constituting Debt (such
consideration, if other than cash, to be valued at the fair market value
thereof), provided
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<PAGE> 11
that, in computing such consideration there shall be excluded (A) any
consideration payable solely in common stock of the Company, (B) dividends to
the extent such dividends do not materially exceed the generally prevailing
market rate (at the time of issuance of such Restricted Preferred Stock) on
preferred stock of comparable risk and maturity; and (C) any premium payable
upon any such purchase, retirement, redemption, exchange or conversion only as
a result of the exercise by the issuer of a call provision exercisable only at
the option of the issuer, if failure to exercise such option would not have an
adverse effect on the Company or any Subsidiary pursuant to the terms of any
such Restricted Preferred Stock or any documents related thereto.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Defeased Debt" means any Debt of the Company or any
Subsidiary (i) which has been defeased in accordance with the terms of the
applicable Debt instruments, (ii) which is deemed to be extinguished under
generally accepted accounting principles applicable to the Company or such
Subsidiary, and (iii) with respect to which the Agent has received a
certificate of an officer of the Company or such Subsidiary to the effect that
the requirements of clauses (i) and (ii) of this definition have been met as to
such Debt and such evidence, if any, in support of such certificate as the
Agent may reasonably request.
"Derivative Transactions" means foreign exchange transactions
and commodity, currency and interest rate swaps, floors, caps, collars, forward
sales, options, other similar transactions and combinations of the foregoing.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City, San Francisco
or Houston are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Company and the Agent.
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<PAGE> 12
"EBITDA" means, for any period, the sum of (i) the
consolidated net income of the Company and its Consolidated Subsidiaries for
such period before non-cash non-recurring items, gains or losses on
dispositions of assets and the cumulative effect of changes in accounting
principles plus (ii) to the extent included in the determination of such
income, the consolidated charges for such period for interest, depreciation,
depletion and amortization plus (or, if there is a benefit from income taxes,
minus) (iii) to the extent included in the determination of such income, the
amount of the provision for or benefit from income taxes; provided that in
determining such consolidated net income, such consolidated charges and such
provision for or benefit from income taxes, there shall be excluded therefrom
(to the extent otherwise included therein) (a) the net income (or loss) of,
charges for interest, depreciation, depletion and amortization of, and such
provision for or benefit from income taxes of, any Person acquired by the
Company or a Subsidiary in a pooling-of-interest transaction for any period
prior to the date of such transaction, and (b) the net income (but not loss)
of, charges for interest, depreciation, depletion and amortization of, and such
provision for (but not benefit from) income taxes of, any Person which is
subject to any contractual restriction which prevents the payment of dividends
or the making of distributions on the capital stock or other ownership
interests of such Person to the extent of such contractual restrictions.
"Effective Date" means the date of this Agreement, which is
May 13, 1994.
"Engineering Report" means a report of an Acceptable Engineer
providing an estimate of the proved reserves of Hydrocarbons attributable to
the properties of the Company and the Restricted Subsidiaries.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the
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<PAGE> 13
clean-up or other remediation thereof, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act, the
Resource Conservation and Recovery Act, the Oil Pollution Act, and their state
analogs, in each case as they have been or may be amended.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Obligors and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any Obligor, are
treated as a single employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Company and the Agent.
"Euro-Dollar Loan" means a Loan which bears interest as
provided in Section 2.07(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Letter of Credit/Guarantee Amount" means, at any date,
the excess of (a) the sum of (i) the aggregate undrawn amount, at such date, of
all letters of credit as to which the Company or any Restricted Subsidiary
(other than Unimar and the Unimar Restricted Subsidiaries) is the account party
or in respect of which the Company or any Restricted Subsidiary (other than
Unimar and the Unimar Restricted Subsidiaries) has Guaranteed payment plus the
unpaid drawn portions, at such date, of all such letters of credit to the
extent such drawn portions do not constitute Debt of the Company or a
Restricted Subsidiary (other than Unimar and the Unimar Restricted
Subsidiaries), plus (ii) the Unimar Percentage of the aggregate undrawn amount,
at such date, of all letters of credit as to which Unimar or any of the Unimar
Restricted Subsidiaries is the account party or in respect of which Unimar or
any of the Unimar Restricted Subsidiaries has
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<PAGE> 14
Guaranteed payment plus the unpaid drawn portions, at such date, of such
letters of credit to the extent such drawn portions do not constitute Debt of
Unimar or any of the Unimar Restricted Subsidiaries, plus (iii) Debt that
constitutes Debt of the Company or any Restricted Subsidiary (other than Unimar
or any Unimar Restricted Subsidiary) pursuant to clause (viii) of the
definition herein of Debt, plus (iv) the Unimar Percentage at such date of Debt
that constitutes Debt of Unimar or any of the Unimar Restricted Subsidiaries
pursuant to clause (viii) of the definition herein of Debt, over (b)
$50,000,000.
"Excess Net Sales Proceeds" means
(i) with respect to any Asset Sale involving, directly or
indirectly, a UK Asset (a "UK Asset Sale"),
(a) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all UK Asset Sales
since December 31, 1993 would be less than or equal
to $50,000,000 and the aggregate Net Sales Proceeds
from all Asset Sales since such date would be less
than or equal to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all UK Asset Sales
since December 31, 1993 ("UK Aggregate Amount") would
be greater than $50,000,000 or the aggregate Net
Sales Proceeds from all Asset Sales since such date
("Total Aggregate Amount") would be greater than
$100,000,000, the lesser of (1) the greater of the
amount by which the UK Aggregate Amount exceeds
$50,000,000 or the amount by which the Total
Aggregate Amount exceeds $100,000,000 or (2) the Net
Sales Proceeds from such Asset Sale; and
(ii) with respect to any Asset Sale not involving, directly or
indirectly, a UK Asset,
(a) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all Asset Sales
since December 31, 1993 would be less than or equal
to $100,000,000, zero; or
(b) if, after giving effect to such Asset Sale, the
aggregate Net Sales Proceeds from all
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<PAGE> 15
Asset Sales since December 31, 1993 would be greater
than $100,000,000, the lesser of (1) the amount by
which such aggregate Net Sales Proceeds exceeds
$100,000,000 or (2) the Net Sales Proceeds from such
Asset Sale.
"Excluded Subordinated Debt" means Debt that (i) is
subordinate and junior, on terms reasonably satisfactory to the Agent, to the
Loans in all respects and (ii) has no requirement, absent a default under such
Debt, that any principal thereof be paid, purchased, redeemed, defeased,
acquired, exchanged or converted (other than exchange for or conversion to
common stock of the Company) prior to April 30, 1999.
"Existing Pakistan Non-Recourse Debt" means the Debt, not
exceeding the principal amount of $9,500,000, evidenced by that certain
promissory note dated December 20, 1988, issued by UT Pakistan in the original
principal amount of $21,250,000, the related Finance Agreement between UT
Pakistan and the Overseas Private Investment Corporation ("OPIC") and the
related Issuing and Paying Agency Agreement among Morgan Guaranty Trust Company
of New York as issuing and paying agent, OPIC and UT Pakistan.
"Fair Market Value" means with respect to any asset of the
Company or any Subsidiary at any date the open market cash purchase price that
an informed and willing purchaser would pay for such asset in an arm's length
transaction to a willing and informed owner under no compulsion to sell, all as
reasonably determined in good faith by the Company.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day, as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to NationsBank on such
day on such transactions as determined by the Agent.
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<PAGE> 16
"Financing Documents" means this Agreement, the Notes and the
Subsidiary Guaranty Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise (including, without limitation, any obligation to repay to a payor or
creditor of a payor amounts previously paid to such Person by such payor), of
such Person directly or indirectly guaranteeing any Debt of any other Person or
otherwise incurred for the purpose of assuring the holder of payment of any
such Debt; provided that (i) the obligations of any Person in respect of Debt
of any Partnership in which such Person is a general partner shall not
constitute a Guarantee of such Debt so long as substantially all assets of such
Person are comprised of its Investment in such Partnership, (ii) the obligation
of a Person to transfer or restore cash to the account of a Partnership,
Subsidiary or Affiliate pursuant to periodic settlements or adjustments under
cash management practices of such Persons shall not constitute a Guarantee,
(iii) the contractual obligation of a Person to assure that a Subsidiary,
Partnership or Affiliate conducts its operations as a prudent operator shall
not constitute a Guarantee of indebtedness of the Subsidiary, Partnership or
Affiliate, (iv) the obligation of a Person to cause net amounts of cash owned
by a Subsidiary, Partnership or Affiliate to be applied to payment of
indebtedness of such Subsidiary, Partnership or Affiliate shall not constitute
a Guarantee of such indebtedness and (v) the reaffirmation to or for the
benefit of a lender of contractual obligations (as, for example, those set
forth in the Production Sharing Contracts) previously entered into in good
faith and not in contemplation of the incurrence of Debt shall not constitute a
Guarantee so long as the other arrangements entered into in connection with
such reaffirmation do not increase the likelihood that additional funds will be
required to meet such obligations (as would be the case, for example, if
revenues otherwise available to meet such obligations were dedicated to such
lender).
"HPG Plant" means the five-twelfths interest in the Geismar,
Louisiana olefins plant owned by UTPC and its subsidiaries, the supply and
distribution assets related to such plant and all other operating assets of
UTPC and its subsidiaries as of December 31, 1993.
"Hydrocarbons" means crude oil, including all kinds of
hydrocarbons and bitumens in solid or liquid form, and natural gas, including
all gaseous hydrocarbons produced from wells, and liquefied natural gas and
liquefied petroleum gases.
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<PAGE> 17
"Indonesian Participating Units" means the Indonesian
Participating Units issued by Unimar pursuant to the Indenture dated as of
September 24, 1984 between Unimar and Irving Trust Company, Trustee, as amended
and in effect on the date hereof, and as hereafter amended to the extent such
subsequent amendments do not change the term thereof, provide additional
security therefor, or increase the payments to be made to holders thereof.
"Interest Period" means, with respect to each Euro-Dollar Loan
comprising part of the same Borrowing, the period commencing on the date of
such Loan or the date of the Conversion of any Base Rate Loan into such
Euro-Dollar Loan and ending on the last day of the period selected by the
Company pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
(or on any other date selected by the Company pursuant to Section 2.03) and
ending on the last day of the period selected by the Company pursuant to the
provisions below and Section 2.03. The duration of each such Interest Period
shall be 1, 2, 3 or 6 months or (subject to Section 2.02(b)) 9 or 12 months, in
each case as the Company may, upon notice received by the Agent not later than
10:00 a.m. (Houston time) on the third Euro-Dollar Business Day prior to the
first day of such Interest Period, select; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Euro-Dollar
Business Day of a calendar month;
(c) if the Company may not select an Interest Period for
any Loan if the last day of such Interest Period would be after April
30, 1996; and
(d) Interest Periods for all Loans comprising the same
Borrowing shall commence on the same date and shall be of the same
duration.
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<PAGE> 18
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, advance, Guarantee or
otherwise. It is understood that a joint operating agreement or similar
arrangement with respect to Hydrocarbon properties or the HPG Plant does not
constitute a Person and hence that payments in respect of the acquisition or
maintenance of an interest in such Hydrocarbon properties or the HPG Plant do
not constitute an Investment.
"Joint Venture Debt" means obligations secured by a Lien on
the interests of the Company or a Subsidiary, as the case may be, arising under
either of the Production Sharing Contracts or any related supply contracts, if
such Lien covers ratably the interests of Pertamina and all production sharing
contractors thereunder.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset (including, without limitation, any production payment, advance payment
or similar arrangement with respect to minerals in place), whether or not
filed, recorded or otherwise perfected under applicable law. For the purposes
of this Agreement, the Company or any Subsidiary shall be deemed to own subject
to a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset. The right of set-off,
whether by operation of law or by contract, does not constitute a Lien unless
there is a related obligation to maintain a deposit of cash or other assets in
respect of which such right of set-off may be exercised.
"Loan" means a loan made by a Bank to the Company pursuant to
section 2.01 and refers to a Base Rate Loan or a Euro-Dollar Loan (each of
which shall be a "Type" of Loan), and "Loans" means Base Rate Loans or
Euro-Dollar Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"Margin Increase Condition" exists at all times during any
Margin Period if the aggregate outstanding amount of Consolidated Debt on the
last day of the calendar quarter immediately preceding the first day of such
Margin Period
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<PAGE> 19
exceeded 300% of Operating Cash Flow for the four calendar quarter period
ending on the last day of such calendar quarter.
"Margin Period" means each period commencing on and including
the 61st day of each calendar quarter and ending on and including the 60th day
of the next calendar quarter, with the first such period commencing on May 31,
1994.
"material" means, with respect to any matter so characterized
herein, that such matter would reasonably be expected to be significant to a
Bank in determining whether to enter into this Agreement or to extend credit
hereunder.
"Material Debt" means Debt of the Company and/or any one or
more Restricted Subsidiaries (other than Non-Recourse Debt) in an aggregate
principal amount equal to or greater than $15,000,000, whether incurred under
one or more related or unrelated documents or instruments.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $15,000,000.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"NationsBank" means NationsBank of Texas, N.A., a national
banking association.
"Net Sales Proceeds" means, with respect to any Asset Sale,
the Fair Market Value of the Restricted Asset that is sold, leased, transferred
or otherwise disposed of in such Asset Sale, minus the sum of (i) all
reasonable fees, commissions and expenses incurred by the Company or any
Subsidiary as a result of or in connection with such Asset Sale and (ii) all
taxes required to be paid by the Company or any Subsidiary as a result of such
Asset Sale.
"Non-Recourse Debt" means, at any date, (a) the aggregate
amount at such date of Debt of the Company or a Subsidiary (other than Unimar
and each Unimar Subsidiary) and (b) the Unimar Percentage of the aggregate
amount at such date of all Debt of each of Unimar and each Unimar Subsidiary,
in
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<PAGE> 20
respect of which in the case of either (a) or (b) (i) the recourse of the
holder of such Debt, whether direct or indirect and whether contingent or
otherwise, shall be effectively limited to Non-Restricted Assets (or, in the
case of the Existing Pakistan Non-Recourse Debt, the assets described in
Schedule III) and (ii) in the case of any such Debt incurred after the date of
this Agreement, the Company shall have, at or prior to the time of incurrence
thereof, notified the Agent of such incurrence and delivered to the Agent a
certificate of an officer of the Company certifying that such Debt constitutes
Non-Recourse Debt (or that such Debt will be converted into Non-Recourse Debt
at some specified time or upon the occurrence of some specified event),
provided that, if any such Debt is secured by any interest in a license,
concession, production sharing contract or other right and any of the
Restricted Assets consists of an interest in such license, concession,
production sharing contract or other right, then the agreements evidencing such
Debt must provide that default under such Debt will not impair or affect such
license, concession, production sharing contract or other right. In the case
of any Non-Recourse Debt incurred after the date of this Agreement, such
limitation on recourse (i) must be set forth in the instrument evidencing such
Debt, and (ii) must be on terms acceptable to the Agent as evidenced by the
written approval thereof by the Agent (which approval will not be unreasonably
withheld, and in deciding whether to approve such terms the Agent will, if
requested by the Company, take into account what terms are usual and customary
in non-recourse financings) and in any event must provide that the holder of
such Debt waives, to the extent such holder may effectively do so, such
holder's right to elect recourse treatment under 11 U.S.C. Section 1111(b)
unless such holder obtains the prior written consent of the Required Banks.
For avoidance of doubt, (a) if any such Debt is Guaranteed by the Company or a
Restricted Subsidiary in a limited amount, the excess over such amount (but
only the excess) constitutes Non-Recourse Debt, and (b) Debt shall not be
determined to not be Non-Recourse Debt solely as a result of the existence of
either of the following: (i) an agreement by a direct or indirect parent
corporation to repay to a subsidiary amounts received by such parent
corporation from such subsidiary in the event such subsidiary has a need for
such amounts in future periods or (ii) an agreement by a direct or indirect
parent corporation to cause a subsidiary to comply with such subsidiary's
contractual obligations so long as the parent corporation is not obligated to
contribute funds to the subsidiary to enable it to comply with such contractual
obligations and has not otherwise Guaranteed such obligations.
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<PAGE> 21
"Non-Restricted Asset Non-Recourse Debt" means, at any date,
the aggregate amount at such date of Non-Recourse Debt as to which the recourse
of the holder is limited exclusively to Non-Restricted Assets as contemplated
by clause (i) of the first sentence of the definition of Non-Recourse Debt.
"Non-Restricted Assets" means all assets of the Company and
its Subsidiaries other than Restricted Assets.
"Non-UK Asset" means any Restricted Asset other than a UK
Asset.
"Notes" means promissory notes of the Company, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Company to
repay the Loans made to it, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" has the meaning specified in Section
2.02.
"Obligors" means the Company and the Required Guarantors, and
"Obligor" means any one of them.
"Operating Cash Flow" means, with respect to any period, an
amount equal to
(i) the "net cash (required) provided by operating activities
before changes in other assets and liabilities" of the Company
and its Consolidated Subsidiaries for such period, that should
be reflected in the consolidated statement of cash flows of
the Company and its Consolidated Subsidiaries for such period
prepared in accordance with generally accepted accounting
principles on substantially the same basis as the consolidated
statement of cash flows of the Company and its Consolidated
Subsidiaries for the year ended December 31, 1993 as set forth
in the Company's 1993 Form 10-K, provided that in determining
such "net cash (required) provided by operating activities
before changes in other assets and liabilities" there shall be
excluded therefrom (to the extent otherwise included therein)
(a) the portion of such net cash provided by assets securing
any Non-Recourse Debt other than the Existing Pakistan
Non-Recourse Debt, (b) the net cash provided or required by
operating activities
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<PAGE> 22
before changes in other assets and liabilities of any Person
acquired by the Company or a Subsidiary in a pooling-
of-interest transaction for any period prior to the date of
such transaction, and (c) the net cash provided by operating
activities before changes in other assets and liabilities of
any Person which is subject to any contractual restriction
which prevents the payment of dividends or the making of
distributions on the capital stock or other ownership
interests of such Person to the extent of such contractual
restrictions,
plus (ii) to the extent included in the determination of the
"net cash (required) provided by operating activities before
changes in other assets and liabilities" for such period in
accordance with the foregoing clause (i), exploration expenses
incurred by the Company or any Consolidated Subsidiary during
such period other than (a) exploration expenses incurred in
connection with assets securing any Non-Recourse Debt other
than the Existing Pakistan Non-Recourse Debt, (b) the
exploration expenses of any Person acquired by the Company or
a Subsidiary in a pooling-of-interest transaction for any
period prior to the date of such transaction, and (c) the
exploration expenses of any Person which is subject to any
contractual restriction which prevents the payment of
dividends or the making of distributions on the capital stock
or other ownership interests of such Person to the extent of
such contractual restrictions,
plus (or, if cash is required by equity investee, minus) (iii)
the amount of the "cash (required) provided by equity
investee" of the Company and its Consolidated Subsidiaries for
such period, that should be reflected in the consolidated
statement of cash flows of the Company and its Consolidated
Subsidiaries for such period prepared in accordance with
generally accepted accounting principles on substantially the
same basis as the consolidated statement of cash flows of the
Company and its Consolidated Subsidiaries for the year ended
December 31, 1993 as set forth in the Company's 1993 Form
10-K, excluding the effect of any cash required by such equity
investee for the payment of the principal of its Debt and any
cash provided by such equity investee from incurrence of its
Debt,
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<PAGE> 23
minus (iv) dividends on preferred stock paid during such
period by the Company or any Consolidated Subsidiary,
determined on a consolidated basis.
"Other Credit Agreement" means the Amended and Restated Credit
Agreement dated as of the date of this Agreement among the Company, the Agent,
the Co-Agents and the Banks providing a $350,000,000 credit facility to the
Company.
"Other Credit Agreement Commitments" means the "Commitments"
as defined in the Other Credit Agreement.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"Partnership" means any general or limited partnership which
is accounted for on the equity method in the Company's consolidated financial
statements and in which the Company or a Subsidiary is a general partner.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
It is understood that a joint operating agreement or similar arrangement with
respect to Hydrocarbon properties or the HPG Plant does not constitute a
Person.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Production Sharing Contracts" means the production sharing
contracts pertaining to certain operations in Indonesia filed as Exhibits
10.102 and 10.103 to the Company's
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<PAGE> 24
quarterly report on Form 10-Q for the quarter ending June 30, 1990, as filed
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934.
"Reference Banks" means the principal London offices of
NationsBank, Bank of America National Trust and Savings Association and Union
Bank of Switzerland and such substitute Bank or Banks as may be mutually agreed
to by the Company and the Agent, and "Reference Bank" means any one of such
Reference Banks.
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Required Guarantors" means (a) each of Union Texas Petroleum
Energy Corporation, UTPC, Union Texas East Kalimantan Limited, Union Texas
International Corporation and Unistar, Inc. and (b) any Subsidiary that
acquires a Restricted Asset (other than any Restricted Asset in Pakistan or, if
such Subsidiary's entering into the Subsidiary Guaranty Agreement would have a
material adverse tax consequence on the Company, in the United Kingdom
(including the United Kingdom Sector of the North Sea)) after December 31, 1993
or the capital stock of any Required Guarantor after December 31, 1993. Each
Required Guarantor shall continue to be a Required Guarantor unless released
from its obligations under the Subsidiary Guaranty Agreement in accordance with
the terms of the Financing Documents.
"Restricted Assets" means (1) all proved reserves of the
Company and the Subsidiaries as of December 31, 1993 in Indonesia, the United
Kingdom (including the United Kingdom Sector of the North Sea) and Pakistan,
(2) all licenses, concessions, production sharing contracts and other rights
pertaining to any such proved reserves (excluding the portion thereof that does
not pertain to any of such proved reserves, if such portion can be severed
without material adverse consequences on the portion pertaining to such proved
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<PAGE> 25
reserves), (3) equipment used in the production of any such proved reserves or
in the transportation of production from any such proved reserves if such
equipment is a fixture or otherwise attached to realty, constitutes all or a
part of any pipeline or related equipment, is all or part of a production
platform or related equipment or is equipment similar to any of the foregoing
or used for a similar purpose, and (4) the HPG Plant.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Company's capital stock (except dividends
payable solely in shares of its common stock), or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of the
Company's capital stock or (b) any option, warrant or other right to acquire
shares of the Company's capital stock (except any such payment made solely in
shares of its common stock); provided that payments of stock-related and other
employee benefits (including purchases by the Company of its common stock in
connection with the payment of such benefits) in the ordinary course of
business to employees of the Company or a Subsidiary shall not be deemed
Restricted Payments.
"Restricted Preferred Stock" means (i) all preferred stock
which (a) is subject to purchase, retirement, redemption, exchange or
conversion (other than exchange for or conversion to common stock of the
Company), in whole or in part under any circumstance whatsoever (other than
purchase, retirement, redemption, exchange or conversion by the issuer thereof,
at the sole option of such issuer, if failure to exercise such option would not
have an adverse effect on the Company or any Subsidiary pursuant to the terms
of any such preferred stock or any documents related thereto) and (b) provides
for dividends materially in excess of the generally prevailing market dividend
rate (at the time of issuance of such preferred stock) for preferred stock of
comparable risk and maturity, and (ii) the portion of all other preferred stock
which is subject to purchase, retirement, redemption, exchange or conversion
(other than exchange for or conversion to common stock of the Company) at any
date or dates on or prior to April 30, 1999 under any circumstance whatsoever
(other than purchase, retirement, redemption, exchange or conversion by the
issuer thereof, at the sole option of such issuer, if failure to exercise such
option would not have an adverse effect on the Company or any Subsidiary
pursuant to the terms of any such preferred stock or any documents related
thereto). For avoidance of doubt, to the extent that any shares of Restricted
Preferred Stock are exchanged for or converted to common stock of the Company
and as a consequence
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<PAGE> 26
such shares of Restricted Preferred Stock are cancelled, such shares shall no
longer constitute Restricted Preferred Stock.
"Restricted Subsidiaries Recourse Debt" means, at any date,
the sum of (a) the aggregate amount of all Debt (other than (i) Non-Recourse
Debt, (ii) any Guarantee of Debt of the Company (including the Loans) and (iii)
the amount, if any, by which the Guarantees of the Restricted Subsidiaries
(other than Unimar and the Unimar Restricted Subsidiaries) included in the
determination of Excess Letter of Credit/Guarantee Amount exceeds the Excess
Letter of Credit/Guarantee Amount) of each Restricted Subsidiary (other than
Unimar and the Unimar Restricted Subsidiaries), determined on a consolidated
basis as of such date, and (b) the Unimar Percentage of the aggregate amount of
all Debt (other than (i) Non-Recourse Debt, (ii) any Guarantee of Debt of the
Company and (iii) the amount, if any, by which the Unimar Percentage of the
Guarantees of Unimar and the Unimar Restricted Subsidiaries included in the
determination of Excess Letter of Credit/Guarantee Amount exceeds the Excess
Letter of Credit/Guarantee Amount) of Unimar and the Unimar Restricted
Subsidiaries, determined on a consolidated basis as of such date.
"Restricted Subsidiary" means each Person listed in Part B of
Schedule II hereto and each Subsidiary that owns directly or indirectly any
interest in any Restricted Assets or any Restricted Subsidiary; provided that a
Restricted Subsidiary shall cease to be such at such time as it is converted to
an Unrestricted Subsidiary pursuant to Section 5.20 or ceases to be a
Subsidiary as a result of a transaction permitted by Section 5.14.
"Restricted Transfer" means (i) any Investment in an
Affiliate, any Unrestricted Subsidiary or any subsidiary of an Unrestricted
Subsidiary, but excluding to the extent otherwise included in the foregoing,
Investments in Unimar and the Unimar Subsidiaries, or (ii) any payment by the
Company or any Subsidiary, directly or indirectly, in respect of Non-Recourse
Debt to the extent such Person is not legally obligated to make such payment by
the terms of such Debt, or solely in the case of Unimar, Unistar, Inc. or any
of the Unimar Subsidiaries, to the extent such Person is not legally obligated
to fund such payment under the terms of the Unimar Partnership Agreement.
"Revolving Credit Period" means the period from and including
the Effective Date to but not including the Termination Date.
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<PAGE> 27
"S&P" means Standard & Poor's Corporation.
"Subsidiary" means (a) Unimar and the Unimar Subsidiaries
(except at such times as the Company does not own, directly or indirectly, any
of the ownership interest in Unimar) and (b) any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Company, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a "majority" as used herein.
"Subsidiary Guarantors" means the Subsidiaries from time to
time parties to the Subsidiary Guaranty Agreement, and their respective
successors.
"Subsidiary Guaranty Agreement" means the Subsidiary Guaranty
Agreement dated as of May 13, 1994 among the Subsidiary Guarantors and
NationsBank, as Agent, substantially in the form of Exhibit B hereto, as the
same may be amended from time to time in accordance with the terms thereof.
"Termination Date" means April 30, 1995, or, if such day is
not a Euro-Dollar Business Day, the Termination Date shall be the next
preceding Euro-Dollar Business Day.
"Type" has the meaning specified in the definition of Loan.
"UK Assets" means all Restricted Assets of UTPL as of December
31, 1993.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefits under
such Plan as determined by such Plan's actuary exceeds (ii) the fair market
value of all Plan assets allocable to such benefits (excluding any accrued but
unpaid contributions), all determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA if such Plan terminated as of such date.
"Unimar" means Unimar Company, a partnership organized and
existing under the laws of Texas.
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<PAGE> 28
"Unimar Partnership Agreement" means the Amended and Restated
Agreement of General Partnership of Unimar dated as of September 11, 1990
between Unistar, Inc. and Ultrastar, Inc., as amended from time to time.
"Unimar Percentage" means, at any date, the aggregate
percentage ownership interest in Unimar owned at such date by the Company and
the Subsidiaries.
"Unimar Restricted Subsidiary" means any Unimar Subsidiary
that is also a Restricted Subsidiary at the relevant date.
"Unimar Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by Unimar, it being
understood that the power to elect exactly 50% of the board of directors or
such other persons does not constitute a majority as used herein.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"UT Pakistan" means Union Texas Pakistan, Inc., a Delaware
corporation.
"UTPC" means Union Texas Products Corporation, a Delaware
corporation.
"UTPL" means Union Texas Petroleum Limited, an English company.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks (except for changes concurred in by the
Company's independent public accountants); provided that in any determination
of Consolidated Debt if (i) the Company or any Restricted Subsidiary owes any
Debt to an Unrestricted Subsidiary which would otherwise be eliminated in such
determination of Consolidated Debt (the "intercompany Debt")
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<PAGE> 29
(other than Debt in an amount not exceeding $10,000,000 in the aggregate at any
time and representing advances by the Unrestricted Subsidiaries to the Company
or a Restricted Subsidiary made in the ordinary course of the cash management
practices of the Company and its Subsidiaries) and (ii) such Unrestricted
Subsidiary owes, at the date of determination, any Debt for borrowed money to a
Person other than the Company or a Subsidiary (the "third party Debt") (other
than any such Debt that also constitutes Debt of the Company or a Restricted
Subsidiary), then an amount equal to the lesser of (1) such intercompany Debt
and (2) such third party Debt, shall not be eliminated in such determination of
Consolidated Debt.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregate of Loans made by Banks to the Company pursuant to Article
II on a single date, of a single Type and, if such Loans are Euro-Dollar Loans,
for a single Interest Period. Borrowings are classified for purposes of this
Agreement by reference to the pricing of Loans comprising such Borrowing (e.g.,
a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
SECTION 1.04. Miscellaneous. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to
Articles and Sections of and Schedules and Exhibits to this Agreement, unless
otherwise specified. The term "including" as used herein means "including
without limitation". Definitions of terms defined herein shall be applicable
to both the singular and plural forms of the terms defined as appropriate.
References to "directly or indirectly" in respect of ownership of any interest
in any assets shall include, without limitation, direct ownership, indirect
ownership through capital stock or other ownership interest (whether through
one or more levels of subsidiaries, affiliates or other Persons) and any other
direct or indirect ownership arrangement.
SECTION 1.05. Unimar. To the extent this Agreement or any
other Financing Document obligates the Company or a Subsidiary to cause Unimar
and the Unimar Subsidiaries to take any action, such obligation shall be
satisfied if (a) the Company votes (or causes a Subsidiary to vote) the Unimar
Percentage in a manner consistent with the obligations of the Company and the
Subsidiaries under the Financing Documents and (b) any representative of the
Company sitting on any management board or board of directors of Unimar or any
of the
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<PAGE> 30
Unimar Subsidiaries votes, as a member of such management board or board of
directors, in a manner consistent with the obligations of the Company and the
Subsidiaries under the Financing Documents.
SECTION 1.06. Ratings. A rating, whether public or private,
by S&P shall be deemed to be in effect on the date of announcement or
publication by S&P, as the case may be, of such rating or, in the absence of
such announcement or publication, on the effective date of such rating and will
remain in effect until the effective date of any change in such rating. In the
event the standards for any rating by S&P are revised, or such rating is
designated differently (such as by changing letter designations to numerical
designations), then the references herein to such rating shall be changed to
the revised or redesignated rating for which the standards are closest to, but
not lower than, the standards at the date hereof for the rating which has been
revised or redesignated, all as determined by the Agent in good faith.
Long-term debt supported by a letter of credit, guaranty (other than guaranties
of Subsidiaries) or other similar credit enhancement mechanism shall not be
considered as senior unsecured long-term debt.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the Revolving
Credit Period each Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Company pursuant to this Section from
time to time in amounts such that the aggregate principal amount of Loans by
such Bank at any one time outstanding to the Company shall not exceed the
amount of such Bank's Commitment at such time. Each Borrowing under this
Section shall be in an aggregate principal amount of $10,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be, subject to the
other terms hereof, in the aggregate amount of the remaining unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Company may
borrow under this Section, repay (whether pursuant to Section 2.10 or
otherwise), or to the extent permitted by Section 2.11, prepay Loans and
reborrow at any time during the Revolving Credit Period under this Section.
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SECTION 2.02. Notice of Borrowings. (a) The Company shall
give the Agent notice (a "Notice of Borrowing") not later than 10:00 A.M.
(Houston time) on (x) the date of each Base Rate Borrowing, and (y) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration
of the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
Notwithstanding the foregoing, not more than ten Euro-Dollar Borrowings shall
be outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
(b) If requested to do so by the Company through the
Agent at least ten Euro-Dollar Business Days before the first day of a proposed
Interest Period for Euro-Dollar Loans, each Bank will advise the Agent before
10:00 A.M. (Houston time) on the sixth Euro-Dollar Business Day preceding the
date of such proposed Interest Period as to whether, if the Company selects a
specified duration of nine or twelve months for such Interest Period, such Bank
expects that deposits in dollars with a corresponding term will be available to
it in the relevant market on the first day of such Interest Period in the
amount required to fund its Loan to which such Interest Period would apply.
Unless a Bank responds by such time to the effect that it expects such deposits
will not be available to it, the Company shall be entitled to select such
proposed duration for such Interest Period.
SECTION 2.03. Conversions. (a) The Company may on any
Euro-Dollar Business Day, upon notice given to the Agent no later than 10:00
a.m. (Houston time) on the third Euro-Dollar Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.02 and
Article VIII and the other provisions hereof, Convert all
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<PAGE> 32
Loans comprising one or more Borrowings; provided, that (i) Loans comprising a
Borrowing may not be Converted if after giving effect to such Conversion, such
Borrowing would be a Euro-Dollar Borrowing and the outstanding principal amount
of such Borrowing would be less than $10,000,000 and (ii) no Conversion (other
than changing Euro-Dollar Loans into Base Rate Loans) may be made if any Event
of Default is then existing. Each such notice of a Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Loans to be Converted, (iii) if after giving effect to such Conversion,
such Borrowing would be a Euro-Dollar Borrowing, the commencement date and
duration of the proposed Interest Period for each Loan comprising such
Borrowing, and (iv) the nature of such Conversion (i.e., whether such
Conversion is a change of Loans of one Type into another Type, a continuation
of Euro-Dollar Loans as such for an additional Interest Period or an election
to change an Interest Period). Each such notice shall be irrevocable.
(b) If the aggregate unpaid principal amount of
Euro-Dollar Loans comprising any Borrowing shall be reduced by payment or
prepayment or otherwise, to less than $10,000,000, such Loans shall
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Loans.
(c) If the Company shall fail to select the duration of
any Interest Period for any Euro-Dollar Loans in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, or if there
shall be any Event of Default, such Loans will automatically on the last day of
the then existing Interest Period therefor, Convert into Base Rate Loans.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent
shall promptly, (by no later than 10:30 A.M. (Houston time) by telephone or
facsimile transmission) notify each Bank of the contents thereof and of such
Bank's share of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Company.
(b) Not later than 12:00 Noon (Houston time) on the date
of each Borrowing, each Bank shall (except as provided in subsection (c) of
this Section) make available its share of such Borrowing, in Federal or other
funds immediately available in Houston, to the Agent at its address specified
in or pursuant to Section 9.01. Unless the Agent determines that
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any applicable condition specified in Article III has not been satisfied, the
Agent will make the funds so received from the Banks available to the Company
at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to the Company
on a day on which the Company is to repay all or any part of an outstanding
Loan from such Bank, such Bank shall apply the proceeds of its new Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed by the Company and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (b), or remitted
by the Company to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Agent such Bank's share of such Borrowing, the Agent may assume that
such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this Section 2.04 and
the Agent may, in reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent that such Bank shall
not have so made such share available to the Agent, such Bank and the Company
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Company until the date such amount is repaid to the
Agent, at (i) in the case of the Company, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to the
Company shall be evidenced by a single Note of the Company payable to the order
of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's Loans to the
Company.
(b) Each Bank may, by notice to the Company and the
Agent, request that its Loans of a particular Type payable to such Bank (or
such lending office, agency or branch of such Bank as such Bank may specify in
such request) be evidenced by a separate Note of the Company in an amount equal
to the
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aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant Type. Any Bank
that receives multiple Notes pursuant to this Section 2.05(b) agrees that: (1)
the aggregate principal amount payable by the Company under such Notes shall
never exceed the aggregate principal amount of the Loans owed to such Bank
(including, if applicable, the separate lending offices, agencies or branches
of such Bank) and (2) the payees of the Notes issued at the request of such
Bank shall enjoy no greater rights (voting or otherwise) than such Bank would
enjoy in the absence of such request and such payees (including, if applicable,
the separate lending offices, agencies or branches of such Bank) shall be
considered a single Bank for purposes of this Agreement. Each reference in
this Agreement to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section
3.01(b), the Agent shall mail or send by private delivery service such Note to
such Bank. Each Bank shall record the date, amount and Type of each Loan made
by it to the Company and the date and amount of each payment of principal made
with respect thereto, and prior to any transfer of its Note shall endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of any Obligor under any of the Financing Documents.
Each Bank is hereby irrevocably authorized by the Company so to endorse any
Note and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan shall mature, and
the principal amount thereof shall be due and payable, on April 30, 1996.
SECTION 2.07. Interest Rates. The Company shall pay interest
on the unpaid principal amount of each Loan from the date of such Loan until
such principal amount shall be paid in full, at the following rates per annum:
(a) If such Loan is a Base Rate Loan, for each day that
such Loan is a Base Rate Loan, at a rate per annum equal to the sum of (i) the
Base Rate for such day plus (ii) at such times as the Margin Increase Condition
exists and the Additional Margin Increase Condition does not exist, 1/8% plus
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(iii) at such times as the Additional Margin Increase Condition exists, 1/4%
plus (iv) at such times as any Event of Default exists, 1%. Such interest shall
be payable quarterly on each March 31, June 30, September 30 and December 31
and on the date such Base Rate Loan is Converted or paid in full. Any overdue
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1% plus the otherwise
applicable rate for such day.
(b) If such Loan is a Euro-Dollar Loan, at a rate per
annum equal at all times during any Interest Period for such Loan to the sum of
(i) 0.6875% plus (ii) the applicable London Interbank Offered Rate plus (iii)
at such times as the Margin Increase Condition exists and the Additional Margin
Increase Condition does not exist, 1/8% plus (iv) at such times as the
Additional Margin Increase Condition exists, 1/4% plus (v) at such times as any
Event of Default exists, 1%; provided that any overdue principal of or interest
on any Euro-Dollar Loan shall bear interest, payable on demand, for each day
from and including the date payment thereof was due to but excluding the date
of actual payment, at a rate per annum equal to the sum of 1% plus the higher
of (i) the sum of 0.6875% plus the London Interbank Offered Rate applicable to
such Loan plus at such times as the Margin Increase Condition exists and the
Additional Margin Increase Condition does not exist, 1/8% plus at such times as
the Additional Margin Increase Condition exists, 1/4% and (ii) the sum of (1)
0.6875% plus (2) the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar Business Days, then for
such other period of time not longer than three months as the Agent may select)
deposits in dollars in an amount approximately equal to such overdue payment
due to each of the Reference Banks are offered to such Reference Bank in the
London interbank market for the applicable period determined as provided above
plus (3) at such times as the Margin Increase Condition exists and the
Additional Margin Increase Condition does not exist, 1/8% plus (4) at such
times as the Additional Margin Increase Condition exists, 1/4% (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 1% plus the rate applicable to Base Rate
Loans for such day). Such interest shall be payable for each Interest Period
on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof.
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The "London Interbank Offered Rate" applicable to any Interest
Period means the arithmetic average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which deposits in
dollars are offered to each of the Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Reference Bank to which
such Interest Period is to apply and for a period of time comparable to such
Interest Period.
(c) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give prompt notice to the
Company and the participating Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
Upon request of the Company, the Agent shall furnish to it such information as
to its determinations hereunder as the Company may reasonably request.
(d) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.01 shall
apply.
(e) This Section 2.07 and each other provision in any of
the Financing Documents or in any other agreement executed in connection
herewith are specifically made subject to Section 2.16.
SECTION 2.08. Fees. (a) During the Revolving Credit Period,
the Company shall pay to the Agent for the account of the Banks ratably in
proportion to their Commitments a commitment fee at a rate per annum equal to
0.1875% on the daily average amount by which the aggregate amount of the
Commitments exceed the aggregate outstanding principal amount of the Loans.
Such commitment fee shall accrue from and including the Effective Date to but
excluding the Termination Date. Additionally, the Company shall pay to the
Agent for the account of the Banks ratably a facility fee at a rate per annum
equal to 0.1875% on the daily average aggregate outstanding principal amount of
the Loans. Such facility fee shall accrue from and including the Effective
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Date to but excluding the date the Loans shall be repaid in their entirety.
(b) Payments. Accrued fees under this Section 2.08 shall
be payable quarterly on each March 31, June 30, September 30 and December 31
and upon the date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction of
Commitments. The Company may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Commitments at any time, if no Loans are
outstanding at such time and if the Other Credit Agreement Commitments have
been terminated or (ii) ratably reduce from time to time by an aggregate amount
of $10,000,000 or any larger multiple of $5,000,000 the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans, provided that no such reduction shall reduce the aggregate amount of the
Commitments below $100,000,000 unless the Other Credit Agreement Commitments
have been terminated.
SECTION 2.10. Mandatory Termination or Reduction of
Commitments. (a) The Commitments shall terminate on the Termination Date.
(b) On the fifth Domestic Business Day following any
Asset Sale that results in positive Excess Net Sales Proceeds, (i) the Company
will deliver to each of the Banks a certificate of the chief financial officer,
the chief accounting officer or the treasurer of the Company certifying the
amount of such Excess Net Sales Proceeds from such Asset Sale, (ii) the
Commitments shall be automatically reduced ratably by an amount equal to (a)
100% of the amount of such Excess Net Sales Proceeds minus (b) the amount by
which the Other Credit Agreement Commitments are reduced pursuant to Section
2.10(d) (ii) of the Other Credit Agreement as a result of such Excess Net Sales
Proceeds from such Asset Sale, (iii) the Company shall be obligated to repay
such principal amount (together with accrued interest thereon) of each Bank's
outstanding Loans, if any, as may be necessary so that after such repayment the
aggregate outstanding principal amount of such Bank's Loans does not exceed the
amount of such Bank's Commitment as then reduced.
SECTION 2.11. Optional Prepayments. (a) The Company may,
upon at least one Domestic Business Day's notice to the Agent, prepay any
Borrowing in whole at any time, or from time to time in part in amounts
aggregating $10,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, provided that no partial prepayment of
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a Euro-Dollar Borrowing shall be made if after giving effect thereto the
principal amount of such Borrowing would be less than $10,000,000. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to
this Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Company.
SECTION 2.12. General Provisions as to Payments. (a) The
Company shall make each payment of principal of, and interest on, the Loans and
of fees hereunder, not later than 12:00 Noon (Houston time) on the date when
due, in Federal or other funds immediately available in Houston, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of,
or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due from the Company to the
Banks hereunder that the Company will not make such payment in full, the Agent
may assume that the Company has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent that the Company shall not have so made
such payment, each Bank shall repay to the Agent forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If any Obligor makes any
payment of principal with respect to any Euro-Dollar Loan
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(pursuant to Article II, VI or VIII or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the end of an applicable
period fixed pursuant to the proviso to Section 2.07(b), or if the Company
fails to borrow any Euro-Dollar Loan after notice has been given to any Bank in
accordance with Section 2.04(a), or if any Conversion of any Euro-Dollar Loan
occurs on any day other than the last day of an Interest Period applicable
thereto, the Company shall reimburse each Bank within 15 days after demand for
any resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin from the period after any such payment or failure
to borrow, provided that such Bank shall have delivered to the Company a
certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest
based on the Base Rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
SECTION 2.15. Chapter 15. In no event shall the provisions
of Article 5069, Chapter 15 of the Revised Civil Statutes of Texas (which
regulates certain revolving credit loan accounts and revolving tri-party
accounts) apply to any Loan made hereunder.
SECTION 2.16. Maximum Interest Rate. (a) Nothing contained
in this Agreement or the Notes shall require the Company to pay interest at a
rate exceeding the maximum rate permitted without penalty by applicable law.
Each provision in the Financing Documents and any other agreement executed in
connection herewith is expressly limited so that in no event whatsoever shall
the amount paid thereunder, or otherwise paid, by the Company for the use,
forbearance or detention of the money to be loaned under this Agreement, exceed
that amount of money which would cause the effective rate of interest thereon
to exceed the maximum rate of interest permitted without penalty under
applicable law, and all amounts payable under the Financing Documents or any
other agreement executed in connection herewith, or otherwise payable in
connection therewith, shall be subject to reduction so that such amounts paid
or payable for the use, forbearance or detention of money to be loaned under
this Agreement shall not exceed that amount of money which would cause the
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effective rate of interest thereon to exceed the maximum rate of interest
permitted without penalty under applicable law.
(b) If the amount of interest payable for the account of
any Bank on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to Section 2.07, would exceed
the maximum amount permitted without penalty by applicable law to be charged by
such Bank, the amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of
any Bank in respect of any interest computation period is reduced pursuant to
clause (b) of this Section and the amount of interest payable for its account
in respect of any subsequent interest computation period, computed pursuant to
Section 2.07, would be less than the maximum amount permitted without penalty
by applicable law to be charged by such Bank, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
provided that at no time shall the aggregate amount by which interest paid for
the account of any Bank has been increased pursuant to this clause (c) exceed
the aggregate amount by which interest paid for its account has theretofore
been reduced pursuant to clause (b) of this Section.
(d) In the event that maturity of the Loans is
accelerated for any reason, or in the event of any required or permitted
prepayment of the Loans, then such consideration that constitutes interest
payable for the account of any Bank shall never include more than the maximum
amount allowed without penalty by applicable law to be charged by such Bank and
excess interest, if any, payable for the account of such Bank pursuant to its
Note, this Agreement or otherwise shall be cancelled automatically as of the
date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Loans of such Bank (or, to the extent in excess of such Loans,
refunded by such Bank to the Company).
(e) It is further agreed that, without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received for the account of any Bank under the Note held by it, under this
Agreement, under any other agreement executed in connection herewith or
otherwise in connection with the Loans or the Commitment of such Bank for the
purpose of determining whether such rate exceeds the maximum nonusurious
interest rate applicable to such Bank, shall be made, to the extent permitted
by usury laws applicable to such Bank (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the
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period of the full stated terms of the Loans evidenced by such Note all
interest at any time contracted for, charged or received by such Bank in
connection therewith.
(f) To the extent that any Bank may be subject to Texas
law limiting the amount of interest payable for its account, such Bank shall
utilize the indicated (weekly) rate ceiling from time to time in effect as
provided in Article 5069-1.04 of the Revised Civil Statutes of Texas, as
amended.
SECTION 2.17. Taxes. (a) Any and all payments by the Company
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges and withholdings, and all
liabilities with respect thereto, excluding (i) in the case of the Agent, each
Co- Agent and each Bank, United States federal income taxes and, without
duplication, any taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which the Agent, such Co-Agent or
such Bank, as the case may be, is organized or any political subdivision
thereof and (ii) in the case of each Bank, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Company shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Bank, any Co-Agent or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.17) such Bank, such Co-Agent or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Company shall make such deductions and (iii) the Company shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, assessments,
charges or similar levies which arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, any of the Notes or the Subsidiary Guaranty
Agreement (hereinafter referred to as "Other Taxes").
(c) The Company will indemnify each Bank, each Co-Agent and the
Agent for the full amount of Taxes and Other Taxes
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(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.17) paid by such Bank,
such Co-Agent or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payments under any indemnification provided for in this Section 2.17(c) shall
be made within 30 days from the date such Bank, such Co-Agent or the Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Company will furnish to the Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
Should any Bank, any Co-Agent or the Agent ever receive any refund, credit or
deduction from any taxing authority to which such Bank, such Co-Agent or the
Agent, as the case may be, would not be entitled but for the payment by the
Company of Taxes as required by this Section 2.17 (it being understood that the
decision as to whether or not to claim, and if claimed, as to the amount of any
such refund, credit or deduction shall be made by such Bank, such Co-Agent or
the Agent, as the case may be, in its sole discretion), such Bank, such
Co-Agent or the Agent, as the case may be, thereupon shall repay to the Company
an amount with respect to such refund, credit or deduction equal to any net
reduction in taxes actually obtained by such Bank, such Co-Agent or the Agent,
as the case may be, and reasonably determined by such Bank, such Co-Agent or
the Agent, as the case may be, to be attributable to such refund, credit or
deduction.
(e) Each Bank represents that it is either (i) a corporation,
association or other entity organized under the laws of the United States or
any state thereof or (ii) entitled to complete exemption from United States
withholding tax imposed on or with respect to any payments, including fees, to
be made to it pursuant to this Agreement or the Notes. Each Bank that is not
organized under the laws of the United States or any state thereof (a "Foreign
Bank") agrees to provide to the Company and the Agent, on or prior to the date
of this Agreement in the case of each Foreign Bank signatory hereto, and on the
date of the Assignment pursuant to which it became a Bank in the case of each
other Foreign Bank, two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Foreign Bank is
entitled to receive payments from the Company under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Foreign Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and
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the Agent two additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent, in each case certifying that such
Foreign Bank is entitled to receive payments from the Company under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Foreign Bank from duly completing and delivering
any such form with respect to it and such Foreign Bank advises the Company and
the Agent that it is not capable of receiving such payments without any
deduction or withholding of United States federal income tax. Each Bank agrees
to indemnify and hold the Company and the Agent harmless from any United States
taxes, penalties, interest and other expenses, costs and losses incurred or
payable by them as a result of either (a) such Bank's failure to submit any
form that it is required to provide pursuant to this Section 2.17(e) or (b) the
Agent's and the Company's reliance on any such form which such Bank has
provided to them, or on the representation of such Bank made to them pursuant
to this Section 2.17(e).
(f) If any Taxes are paid by the Company pursuant to this Section
2.17 in respect of the Applicable Lending Office of any Bank, such Bank will,
if requested to do so by the Company, designate a different Applicable Lending
Office if such designation will avoid the need to pay, or reduce the amount of,
such Taxes and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
ARTICLE III
CONDITIONS
SECTION 3.01. Initial Borrowing. The obligation of any Bank
to make a Loan on the occasion of the initial Borrowing is subject to the
satisfaction (or waiver in accordance with Section 9.05) of each of the
following conditions:
(a) receipt by the Agent of counterparts hereof signed by
each of the parties hereto (or, in the case of any party as to which
an executed counterpart shall not have been received, receipt by the
Agent in form satisfactory to it of
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telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party);
(b) receipt by the Agent for the account of each Bank of
a duly executed Note of the Company dated on the date of this
Agreement complying with the provisions of Section 2.05;
(c) receipt by the Agent of the Subsidiary Guaranty
Agreement, duly executed by each of the Required Guarantors;
(d) receipt by the Agent of an opinion of Newton W.
Wilson, III, General Counsel of the Company, substantially in the form
of Exhibit C hereto;
(e) receipt by the Agent of an opinion of Andrews & Kurth
L.L.P., special counsel for the Obligors, substantially in the form of
Exhibit D hereto;
(f) receipt by the Agent of an opinion of Bracewell &
Patterson, special counsel for the Agent, substantially in the form of
Exhibit E hereto;
(g) receipt by the Agent of opinions of local counsel,
substantially in the forms of Exhibits G-1 and G-2 hereto;
(h) receipt by the Agent of all documents it may
reasonably request relating to the existence of the Obligors, the
corporate authority for and the validity of each of the Financing
Documents, and any other matters relevant thereto, all in form and
substance satisfactory to the Agent;
(i) receipt by the Agent of a certificate of an officer
of the Company stating the rating by S&P of all senior unsecured
long-term debt of the Company as in effect on the date of this
Agreement; and
(j) receipt by the Agent of a certificate of the chief
financial officer, the chief accounting officer or the treasurer of
the Company certifying, as of the Effective Date, that no Default
exists.
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SECTION 3.02. All Borrowings. The obligation of any Bank to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions (in addition to the conditions set forth in Section
3.01):
(a) receipt by the Agent of a Notice of Borrowing as
required by Section 2.02;
(b) the fact that immediately prior to and immediately
after such Borrowing, no Default shall have occurred and be
continuing; and
(c) the fact that the representations and warranties of
the Company contained in this Agreement (except, in the case of any
Borrowing subsequent to the first Borrowing, the representations and
warranties set forth in Section 4.04(a) or (c)) shall be true and
correct in all material respects on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company on the date of such Borrowing as to the facts specified in this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the
Obligors is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to own its assets and to carry on its business
as now conducted and is duly qualified as a foreign corporation in good
standing in each jurisdiction where the nature of its business or the ownership
or leasing of its properties requires such qualification and where the failure
so to qualify could have a material adverse effect on the business, financial
position, results of operations or prospects of the Company and its
Subsidiaries, taken as a whole. Neither the Company nor any Subsidiary or
Affiliate is subject to regulation under the Public Utility Holding Company Act
of 1935, the Investment Company Act of 1940, the Interstate Commerce Act or any
other law or regulation which limits the incurrence by the Company or any
Subsidiary of Debt, including, but not limited to, laws relating to common
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or contract carriers or the sale of electricity, gas, steam, water or other
public utility services.
SECTION 4.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by each Obligor of each
Financing Document to which it is shown as being a party are within such
Obligor's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, or constitute a default under, any
provision of applicable law or regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System) or the certificate of incorporation, by-laws or other charter documents
of such Obligor or of any instrument or agreement evidencing or governing Debt
or any other material agreement, judgment, injunction, order, decree or other
instrument binding upon such Obligor or result in the creation or imposition of
any material Lien on any asset of the Company or any Subsidiary. All
authorizations, consents and approvals of governmental bodies, agencies or
officials required in connection with the execution, delivery and performance
by each Obligor of the Financing Documents to which it is shown as being a
party have been obtained and are in full force and effect.
SECTION 4.03. Binding Effect. This Agreement and each of the
Notes have been duly executed and delivered by the Company and constitute
legal, valid and binding agreements of the Company, and the Subsidiary Guaranty
Agreement has been duly executed and delivered by each Required Guarantor and
constitutes a legal, valid and binding obligation of each Required Guarantor.
SECTION 4.04. Information.
(a) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1993 and the related consolidated
statements of operations, cash flows and common stock and other shareholders'
equity for the fiscal year then ended, reported on by Price Waterhouse and set
forth in the Company's 1993 Form 10-K, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Company and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) To the best knowledge of the Company, there are no
statements or conclusions in any Engineering Report delivered pursuant hereto
which are based upon or include
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misleading information or fail to take into account material information
regarding the matters reported therein, it being understood that such
statements and conclusions are necessarily based upon professional opinions,
estimates and forecasts, and the Company does not warrant that such opinions,
estimates and forecasts will ultimately prove to the have been accurate.
(c) The Company's 1993 Form 10-K does not contain any
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements contained therein not misleading. Except for
matters of general public knowledge with respect to the oil and gas industry,
the Company has disclosed to the Banks in writing any and all facts which
materially and adversely affect or may be reasonably expected so to affect (to
the extent the Company can now reasonably foresee), the business, assets,
operations, prospects or condition, financial or otherwise, of the Company and
its Subsidiaries or the ability of any Obligor to perform its obligations under
the Financing Documents.
(d) Since December 31, 1993 there has been no material
adverse change in the business, financial position, results of operations or
prospects of the Company and its Subsidiaries, taken as a whole.
(e) No Default exists.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries or any of their
respective properties or interests at law or in admiralty or equity, before any
court or arbitrator or any governmental body, agency or official, foreign or
domestic, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, financial position or
results of operations of the Company and its Subsidiaries, taken as a whole, or
which in any manner draws into question the validity of any Financing Document.
SECTION 4.06. Compliance with ERISA. Each member of the
ERISA Group has fulfilled its obligations under the minimum funding standards
of ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or
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in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course
of its business, the Company conducts an ongoing review of the effect of
existing Environmental Laws on the business, operations and properties of the
Company and the Subsidiaries, in the course of which it attempts to identify
and evaluate associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that existing Environmental Laws are unlikely to have a material adverse effect
on the business, financial condition, results of operations or prospects of the
Company and its Subsidiaries, taken as a whole.
SECTION 4.08. Subsidiaries. All Restricted Assets are owned
as of the date of this Agreement by the Company and the Persons listed in Part
B of Schedule II hereto or, in the case of Restricted Assets sold since
December 31, 1993, by Persons other than Unrestricted Subsidiaries. The list
of entities under the caption "Subsidiary Guarantors" on the signature pages of
the Subsidiary Guaranty Agreement constitutes a true, complete and accurate
list of all Required Guarantors as of the date of this Agreement. Part A of
Schedule II hereto contains a true, complete and accurate list of all
Unrestricted Subsidiaries, and Part B of Schedule II hereto contains a true,
complete and accurate list of all Restricted Subsidiaries as of the date of
this Agreement.
SECTION 4.09. Ownership of Restricted Subsidiaries. The
Company or a Restricted Subsidiary is the record and beneficial owner, free and
clear of all Liens (other than those permitted by Section 5.07), of (i) all of
the issued and outstanding capital stock (other than directors' qualifying
shares and shares beneficially owned by the Company or a
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Restricted Subsidiary and held by nominees of the Company or a Restricted
Subsidiary solely to satisfy requirements of local law) and other ownership
interests of each Restricted Subsidiary (except Unimar and the Unimar
Restricted Subsidiaries and any other Restricted Subsidiary the capital stock
of which is sold pursuant to a sale permitted by Section 5.14) and (ii) except
during any period during which Unimar is an Unrestricted Subsidiary or ceases
to be a Subsidiary, at least 50% of the ownership interest in Unimar and the
Unimar Restricted Subsidiaries. Except as disclosed on Schedule VI, there are
no outstanding options, warrants or other rights to acquire any capital stock
or other ownership interest of any Restricted Subsidiary.
SECTION 4.10. Title to Properties. The Company and each of
the Subsidiaries have good title, free and clear of all Liens, claims, burdens
and title defects, to all of the material assets reflected in the Company's or
such Subsidiary's books and records as being owned by them except Liens
permitted by this Agreement and claims, burdens and title defects not
materially adverse in the aggregate.
SECTION 4.11. Taxes and Other Obligations. Consolidated
United States Federal income tax returns of the Company and the Subsidiaries
have been examined by the Internal Revenue Service, or the statutory period for
such examination has expired, for all years up to and including the year ended
December 31, 1989, and all assessed deficiencies resulting from such
examination have been discharged or reserved against as required by generally
accepted accounting principles. The Company and the Subsidiaries have filed
all United States Federal, state and local income tax returns and all other
material domestic tax returns which are required to be filed by them and have
paid, or provided for the payment before the same became delinquent of, all
taxes due pursuant to such returns or pursuant to any assessment received by
the Company or any Subsidiary, other than those taxes being diligently
contested in good faith by appropriate proceedings. The charges, accruals and
reserves on the books of the Company and the Subsidiaries in respect of taxes
are, in the opinion of the Company, adequate. The Company and the Subsidiaries
have set up such reserves as are required by generally accepted accounting
principles for the payment of additional taxes for years which have not been
audited by the respective tax authorities. The Company and the Subsidiaries
have paid all other material obligations when due other than those being
contested in good faith by appropriate proceedings.
SECTION 4.12. Regulation U. Neither the Company nor any
Subsidiary is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock
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(within the meaning of Regulation G) or margin stock (within the meaning of
Regulation U). Following the application of the proceeds of each Loan, not
more than 25% of the value of the assets of the Company, or of the Company and
its Subsidiaries, which are subject to any arrangement with the Agent or any
Bank (herein or otherwise) whereby the Company's or any Subsidiary's right or
ability to sell, pledge or otherwise dispose of assets is in any way restricted
will be any such margin stock.
SECTION 4.13. Certain Obligations. Neither the Company nor
any Subsidiary has any obligation to make payments on the Joint Venture Debt
other than those permitted by Section 5.17. The only Non-Recourse Debt
existing on the date of this Agreement is the Existing Pakistan Non-Recourse
Debt.
SECTION 4.14. United Kingdom Assets. Substantially all of
the Restricted Assets located in the United Kingdom (including the United
Kingdom Sector of the North Sea) are directly owned by UTPL as of the date of
this Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each
of the Banks:
(a) as soon as available and in any event within 100 days
after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
operations, cash flows and common stock and other shareholders' equity
for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by Price
Waterhouse or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year
of the Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the
related consolidated
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statements of operations and cash flows for such quarter and for the
portion of the Company's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the Company's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to preparation in accordance with generally accepted
accounting principles and consistency by the chief financial officer,
the chief accounting officer or the treasurer of the Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.05 and
5.15 on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which
the Company and its Subsidiaries are taking or propose to take with
respect thereto;
(d) as soon as available and in any event within 60 days
after the end of each fiscal quarter of the Company, a certificate of
the chief financial officer, the chief accounting officer or the
treasurer of the Company certifying (i) whether the Margin Increase
Condition will exist during the Margin Period commencing 61 days
following the end of such fiscal quarter and (whether or not any will
exist) setting forth the computation of each amount referred to in the
definition thereof as of the relevant dates or for the relevant
periods, (ii) whether the Additional Margin Increase Condition exists
as of the date of such certificate, (iii) the Unimar Percentage as of
the end of such quarter and the amounts as of the end of such quarter
of Consolidated Debt, Defeased Debt, Excluded Subordinated Debt, Debt
of the Company and its Consolidated Subsidiaries determined on a
consolidated basis, Debt of the Company and the Restricted
Subsidiaries determined on a consolidated basis, Debt of Unimar, Debt
of Unrestricted Subsidiaries, Excess Letter of Credit/Guarantee
Amount, Non-Restricted Asset Non-Recourse Debt, Non-Recourse Debt of
the Company and the Restricted Subsidiaries, and Restricted
Subsidiaries Recourse Debt, and (iv) each Asset Sale that has been
consummated during such quarter, the Fair Market Value of the
Restricted Assets subject thereto, the amount of fees, commissions,
expenses and taxes related thereto,
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the Net Sales Proceeds therefrom and the cumulative amount of the
Excess Net Sales Proceeds from all Assets Sales since December 31,
1993;
(e) within five days after the chief financial officer,
the chief accounting officer or treasurer of the Company obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company setting forth the details
thereof and the action which the Company and its Subsidiaries are
taking or propose to take with respect thereto;
(f) immediately upon the filing of, or any material
development in, any litigation or the occurrence of any other event or
contingency, if such development, litigation, event or contingency
could reasonably be expected to have a material adverse effect on the
business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company setting forth the details of
such development, litigation, event or contingency and the action
which the Company and its Subsidiaries are taking or propose to take
with respect thereto;
(g) as soon as available and in any event within 100 days
after the end of each fiscal year of each Restricted Subsidiary (other
than the Unimar Restricted Subsidiaries), a consolidated balance sheet
of such Restricted Subsidiary and its consolidated subsidiaries as of
the end of such fiscal year and the related consolidated statements of
operations, cash flows and common stock and other shareholders' equity
for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all certified as to
preparation in accordance with generally accepted accounting
principles and consistency by the chief financial officer, the chief
accounting officer or the treasurer of such Restricted Subsidiary;
(h) as soon as available and in any event within 60 days
after the end of the first three quarters of each fiscal year of each
Restricted Subsidiary (other than the Unimar Restricted Subsidiaries,
Union Texas Petroleum Energy Corporation and Union Texas International
Corporation), a consolidated balance sheet of such Restricted
Subsidiary and its consolidated subsidiaries as of the end of such
quarter and the related consolidated statements of operations and cash
flows for
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such quarter and for the portion of such Restricted Subsidiary's
fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and
the corresponding portion of such Restricted Subsidiary's previous
fiscal year, all certified (subject to normal year-end adjustments) as
to preparation in accordance with generally accepted accounting
principles and consistency by the chief financial officer, the chief
accounting officer or the treasurer of such Restricted Subsidiary;
(i) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements, reports
and proxy statements so mailed;
(j) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company
shall have filed with the Securities and Exchange Commission;
(k) at least 45 days prior to the closing of each Asset
Sale that will result in aggregate Net Sales Proceeds (for such sale
or, if such sale is one of a series of related sales, for all sales
and contemplated sales in such series) of $50,000,000 or more, notice
of such sale describing the assets to be sold and the estimated Net
Sales Proceeds thereof;
(l) if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) (other than a "reportable event"
not subject to the provisions for 30-day notice to the PBGC under the
regulations issued under Section 4043 of ERISA) with respect to any
Plan which might constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a
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trustee to administer, any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA,
a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer, the chief accounting
officer or the treasurer of the Company setting forth details as to
such occurrence and action, if any, which the Company or applicable
member of the ERISA Group is required or proposes to take;
(m) within 5 days after the chief financial officer, the
Vice President-Finance, the treasurer or the controller of the Company
has knowledge of any filing under Rule 13d of the Securities and
Exchange Commission, promulgated under the Securities Exchange Act of
1934, as amended, a copy thereof;
(n) within 5 days after receipt by the Company of any
written agreement of the type referred to in Section 6.01(k)(iii)(c),
(A) a copy thereof except that (i) if such written agreement has not
been filed with the Securities and Exchange Commission and is not
otherwise public information, each Bank as a condition to receiving a
copy of such written agreement may be required to sign, prior to
receipt thereof, a confidentiality agreement pursuant to which it
agrees that it will treat such written agreement in a confidential
manner until such written agreement otherwise becomes public, except
for disclosure (a) to counsel for and other advisors, accountants and
auditors of such Bank, (b) as may be required by statute, decision,
order, rule, regulation or other law, (c) to regulatory authorities,
(d) in connection with any litigation involving such written
agreement, such confidentiality agreement or any of the Financing
Documents, and (e) in connection with any assignment, prospective
assignment, sale, prospective sale, participation or prospective
participation or other transfer or prospective transfer of any of such
Bank's interests hereunder provided that any such assignee,
prospective assignee, purchaser, prospective purchaser, participant,
prospective participant, transferee, or prospective transferee shall
have entered into a confidentiality agreement for the benefit of the
Company
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substantially upon the terms of this Section 5.01(n), and (ii) if the
Company is contractually prohibited from delivering a copy of such
written agreement to the Banks, the Company shall not be required to
deliver such written agreement unless such prohibition has been
waived, but the Company shall use reasonable efforts to obtain such
waiver or if it is a party to such written agreement to prevent any
such prohibition from being included therein, and (B) if the Company
is a party to such written agreement, but is excused pursuant to
clause (A)(ii) of this Section 5.01(n) from delivering a copy thereof
to the Banks, the Company shall notify the Banks of the existence of
such written agreement (but not the content thereof or other parties
thereto), but as a condition to receiving such notice the Banks may be
required to sign, prior to receipt of such notice, a confidentiality
agreement conforming to clause (A)(i) of this Section 5.01(n);
(o) by May 1 of each year, an Engineering Report as of
the last day of the immediately preceding year;
(p) promptly upon the closing of the sale or other
disposition of any capital stock of UTPC or any option, warrant or
other right to acquire any such capital stock, notice thereof;
(q) promptly after any change in or termination of the
rating of any senior unsecured long-term debt of the Company by S&P,
notice thereof.
(r) from time to time such additional information
regarding the financial position or business of the Company or any
Subsidiary as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Affirmative Covenants. The Company will
maintain its existence and cause each Restricted Subsidiary to maintain its
existence except in the case of (i) a merger of a Restricted Subsidiary into
the Company in a merger permitted by Section 5.08 hereof, (ii) the merger of a
Restricted Subsidiary into another Restricted Subsidiary, if immediately after
such merger (and giving effect thereto), no Default shall have occurred and be
continuing, and (iii) any Asset Sale in the form of the merger of a Restricted
Subsidiary into another Person, if immediately after such merger (and giving
effect thereto), no Event of Default shall have occurred and be continuing.
The Company and each Subsidiary shall:
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(a) Conduct of Business; Property. Cause all material
property useful and necessary in its business to be maintained in good
working order and condition and to be operated prudently in accordance
with good industry practice; and to the extent consistent with prudent
business practices, defend its right, title and interest in its
material properties against all adverse claims.
(b) Compliance with Laws. Comply with all applicable
laws, ordinances, rules, regulations and reporting, filing and other
requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder), except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or where the
failure to so comply would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(c) Inspection of Property, Books and Records. Keep
proper books of record and account in accordance with sound accounting
practices; and permit representatives of any Bank, at such Bank's sole
risk and expense, to visit and inspect any of its properties (subject
to obtaining any required consent of third-party operators), to
examine and make abstracts and copies from any of its books and
records and to discuss its affairs, finances and accounts with its
officers and employees, and use its best efforts to make its
independent public accountants available to discuss the affairs,
finances and accounts of the Company and any of its Subsidiaries, all
at such reasonable times and as often as may reasonably be desired.
SECTION 5.03. Primary Business. The exploration for, and
production and marketing of, Hydrocarbons will continue to be the primary
business of the Company and its Subsidiaries taken as whole.
SECTION 5.04. Insurance. The Company will maintain, and will
cause each Subsidiary to maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and reputable insurance
companies, insurance on their property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business; and
will furnish to the Banks, upon written request from the Agent, full
information as to the insurance carried.
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SECTION 5.05. Debt. (a) Consolidated Debt will at no time
exceed $750,000,000 minus the aggregate of all Excess Net Sales Proceeds with
respect to all Asset Sales made at or prior to such time.
(b) At no time will Restricted Subsidiaries Recourse Debt exceed
$75,000,000.
(c) Consolidated Debt will not, on the last day of any calendar
quarter, exceed 3.75 times Operating Cash Flow for the four calendar quarters
ending on such day.
(d) Neither the Company nor any Restricted Subsidiary will create,
assume or otherwise incur any Debt if at the time of creation, assumption or
incurrence of such Debt or after giving effect to the creation, assumption or
incurrence of such Debt, any Event of Default would exist; provided that the
Company or any Restricted Subsidiary may renew or extend (but not increase) its
own Debt.
SECTION 5.06. Restricted Payments. Neither the Company nor
any Subsidiary shall declare or make any Restricted Payment unless, immediately
prior thereto and immediately thereafter, no Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall make
any Restricted Transfer unless, immediately prior thereto and immediately
thereafter, no Event of Default shall have occurred and be continuing, provided
that the Company or any Subsidiary can make Restricted Transfers in the form of
Investments in an Affiliate, Unrestricted Subsidiary or subsidiary of an
Unrestricted Subsidiary if (i) such Affiliate, Unrestricted Subsidiary or
subsidiary, as the case may be, has no outstanding Debt at the time of such
Investment and does not thereafter create, assume or otherwise incur any Debt
while any Event of Default is continuing and (ii) the Company notifies the
Banks of any such Investment in excess of $5,000,000 at least ten days prior to
such Investment. Nothing in this Section shall prohibit the payment of any
dividend or distribution within 45 days after the declaration thereof if
payment of such dividend or distribution was not prohibited by this Agreement
at the time such declaration was made.
SECTION 5.07. Negative Pledge. Neither the Company nor any
Restricted Subsidiary will create, assume or suffer to exist (i) any Lien on
any capital stock or other ownership interest of any Restricted Subsidiary now
owned or hereafter acquired by it or any Lien on any option, warrant or other
right to acquire any capital stock or other ownership interest of any
Restricted Subsidiary now owned or hereafter acquired by it, other than those
described in Part A of Schedule III or
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(ii) any Lien on any other asset now owned or hereafter acquired by it, except
for the following Liens on assets not referred to in the foregoing clause (i)
of this Section:
(a) Liens existing on the date of this Agreement,
securing Debt outstanding and other obligations (including contractual
obligations) existing on the date of this Agreement and, except in the
case of inchoate operator's Liens, described in Part B of Schedule III
hereto;
(b) any Lien (i) on any Non-Restricted Asset securing
only Non-Restricted Asset Non-Recourse Debt of the Company or any
Restricted Subsidiary or (ii) on any asset of Virginia Indonesia
Company, Virginia International Company or Union Texas East Kalimantan
Limited securing Joint Venture Debt;
(c) mechanics', materialmen's, carriers' and other
statutory Liens, but only if arising, and only so long as continuing,
in the ordinary course of business; or deposits or pledges to obtain
the release of any such Lien; or easements, encroachments or other
title defects which do not materially detract from the value of its
assets or materially impair the use thereof in the operation of its
business;
(d) Liens arising in the ordinary course of its business
which (i) do not secure Debt, (ii) do not secure any obligation in an
amount exceeding $15,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(e) Liens on any interest in a Partnership arising under
any agreement creating or governing such Partnership (including
Unimar) and securing only obligations of the members of such
Partnership to make Investments in such Partnership;
(f) Liens arising under any customary provision of any
joint operating agreement or similar agreement relating to the
exploration, production, development or transportation of oil and gas;
(g) Liens not otherwise permitted by the foregoing
clauses of this Section on assets (other than any of the Restricted
Assets) securing Debt in an aggregate principal amount at any time
outstanding not to exceed $20,000,000; and
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(h) any Lien securing the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by the
foregoing subsection (a) of this Section, provided that such Debt is
not increased from the lesser of the amount of such Debt set forth on
Schedule III hereto or the amount of such Debt outstanding immediately
prior to such refinancing, extension, renewal or refunding, and such
Lien does not cover any property that is not described on Schedule III
hereto as securing such Debt.
SECTION 5.08. Consolidations and Mergers. The Company will
not consolidate or merge with or into any Person, provided that the Company may
merge with another Person if the Company is the surviving corporation and,
immediately after such merger (and giving effect thereto), no Default shall
have occurred and be continuing.
SECTION 5.09. Use of Proceeds. The proceeds of the Loans
made under this Agreement will be used by the Company for general corporate
purposes; provided that none of such proceeds will be used in any manner or for
any purpose that results in any violation of any applicable law or regulation
(including, without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System).
SECTION 5.10. Parties to Subsidiary Guaranty Agreement. The
Company shall cause each Person that shall at any time after the date of this
Agreement become a Required Guarantor to enter into the Subsidiary Guaranty
Agreement and deliver, not later than 30 days after the date on which such
Person shall have become a Required Guarantor, to the Agent, in addition to a
duly executed counterpart of the Subsidiary Guaranty Agreement, duly executed
documents, in form and substance satisfactory to the Agent, of the type
referred to in Section 3.01(c), (d), (e), (g) and (h) pertaining to such
Required Guarantor and the Subsidiary Guaranty Agreement executed by it. Upon
any sale or other disposition of all of the capital stock of a Required
Guarantor in an Asset Sale permitted by Section 5.14, so long as no Default
exists, such Required Guarantor shall be released from its obligations under
the Subsidiary Guaranty Agreement, and the Agent shall execute such releases
and other documents as such Subsidiary or the Company may reasonably request to
further evidence such release.
SECTION 5.11. Restrictions on Dividends, Intercompany Loans,
or Investments. The Company will not create or otherwise cause or permit to
exist or become effective, or permit any Subsidiary to create or otherwise
cause or permit to exist or become effective, any consensual
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encumbrance or restriction (other than the Financing Documents) on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its capital stock or other ownership interests or pay any Debt
or other obligation owed to the Company or any Restricted Subsidiary, or (ii)
make any loans or advances to or other Investments in the Company or any
Restricted Subsidiary, except any encumbrance or restriction in effect on the
date of this Agreement and described on Schedule IV hereto.
SECTION 5.12. Loans and Advances. The Company will not make
or permit to remain outstanding any cash loan or advance to any Person, or
permit any Restricted Subsidiary to make or permit to remain outstanding any
cash loan or advance to any Person, except (i) loans and advances to
Subsidiaries or joint ventures, partnerships or other business ventures in
which the Company or any Subsidiary has or is contemporaneously acquiring an
interest or participation; and (ii) other loans and advances not exceeding
$10,000,000 at any time outstanding.
SECTION 5.13. Cross-Default. The Company will not create,
assume, otherwise incur or suffer to exist, or permit any Restricted Subsidiary
to create, assume, otherwise incur or suffer to exist, any Debt if the maturity
of such Debt is or may be accelerated (assuming the giving of notice or lapse
of time or both), in whole or in part, as a result of any default under, or
acceleration of (i) any Non-Recourse Debt of the Company or any Restricted
Subsidiary or (ii) any Debt of any Unrestricted Subsidiary, unless the Required
Banks shall have given their prior written consent to such Debt of the Company
or Restricted Subsidiary to be so created, assumed or otherwise incurred, which
consent will not be unreasonably withheld; provided that this Section 5.13
shall not prohibit a provision in a Guarantee of the Company or a Restricted
Subsidiary Guaranteeing Debt of an Unrestricted Subsidiary that provides that
the payment obligation under such Guarantee may be accelerated upon default
under or acceleration of such Debt.
SECTION 5.14. Subsidiaries. The Company will at all times
own, either directly or through one or more Restricted Subsidiaries, free and
clear of all Liens (other than those permitted by Section 5.07), 100% of all
issued and outstanding capital stock (other than directors' qualifying shares
and shares beneficially owned by the Company or a Restricted Subsidiary and
held by nominees of the Company or a Restricted Subsidiary solely to satisfy
requirements of local law) and other ownership interests of each Restricted
Subsidiary and all options, warrants and other rights to
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acquire any such capital stock or any such ownership interest, except for (i)
Unimar and the Unimar Restricted Subsidiaries, (ii) any Restricted Subsidiary
sold or otherwise disposed of pursuant to an Asset Sale, if after giving effect
to such Asset Sale, the Company does not own, directly or indirectly, any
interest in such Restricted Subsidiary, and (iii) those options described on
Schedule VI. The Company will at all times own, either directly or through one
or more Restricted Subsidiaries, free and clear of all Liens (other than those
permitted by Section 5.07), 50% or more of the ownership interest in Unimar and
the Unimar Restricted Subsidiaries and all options, warrants and other rights
to acquire any such ownership interest (other than those described on Schedule
VI); provided that the Company and the Restricted Subsidiaries may sell all of
their ownership interest in Unimar and the Unimar Restricted Subsidiaries and
such options, warrants and other rights if, after giving effect to such sale,
the Company does not own, directly or indirectly, any interest in Unimar, the
Unimar Restricted Subsidiaries or any such option, warrant or other right. The
Company will not at any time permit any Restricted Subsidiary that is not a
Unimar Restricted Subsidiary to become a Unimar Restricted Subsidiary. The
Company will not permit any Restricted Asset to be sold, leased, transferred or
otherwise disposed of to any Person that was an Unrestricted Subsidiary
immediately prior thereto if any Default then exists or would result. The
Company will not permit any Restricted Subsidiary to issue any preferred stock
unless such preferred stock at all times is owned only by the Company. The
Company will not permit any Restricted Subsidiary to own, directly or
indirectly, both (a) any UK Asset and (b) any Non-UK Asset.
SECTION 5.15. Adjusted Equity and Interest Coverage. The
Company will at all times maintain Adjusted Equity of $300,000,000 or more.
The Company will cause EBITDA for each period of four consecutive calendar
quarters to exceed 4.00 times Cash Interest Expense for such period.
SECTION 5.16. Excluded Subordinated Debt and Preferred Stock.
Neither the Company nor any Subsidiary will pay, prepay, purchase, redeem,
defease, acquire, exchange or convert any preferred stock (other than
Restricted Preferred Stock) or any Excluded Subordinated Debt, except (a)
exchanges for or conversions to common stock of the Company, (b) payments of
interest when due required by the terms of any such Excluded Subordinated Debt
as such terms are in effect on the date such Excluded Subordinated Debt is
incurred and (c) if no Event of Default exists, payments of ordinary periodic
dividends (excluding liquidating dividends) on such preferred
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stock in accordance with the terms thereof as such terms are in effect on the
date such preferred stock is issued.
SECTION 5.17. Certain Obligations. Neither the Company nor
any Subsidiary will create, incur, assume or suffer to exist any obligation on
its part to make any payment on the Joint Venture Debt other than (a) the
obligations set forth in the agreements listed on Schedule V hereto with
respect to Joint Venture Debt in existence on the date of this Agreement and
(b) obligations substantially similar to those referred to in clause (a) with
respect to Joint Venture Debt created, incurred, assumed or arising after the
date of this Agreement.
SECTION 5.18. Restrictions on Asset Sales. (a) The Company
will not and will not permit any of its Restricted Subsidiaries to enter into
any Asset Sale if after giving effect thereto any Event of Default would exist.
(b) The Company will not permit to occur any Asset Sale involving,
directly or indirectly, any UK Assets if the aggregate Net Sales Proceeds of
all Asset Sales involving, directly or indirectly, UK Assets since December 31,
1993 would exceed $250,000,000.
SECTION 5.19. UTEK Guaranty. The Company will cause Union
Texas East Kalimantan Limited to report, as promptly as reasonably practicable,
the execution and delivery of the Subsidiary Guaranty Agreement to the
Indonesian Foreign Commercial Loan Team ("Team") established pursuant to
Indonesian Presidential Decree No. 39 of 1991 and to deliver, as promptly as
reasonably practicable, to the Team and to Bank Indonesia copies of this
Agreement and the Subsidiary Guaranty Agreement.
SECTION 5.20. Conversion to Unrestricted Subsidiary. The
Company may convert a Restricted Subsidiary into an Unrestricted Subsidiary by
giving the Agent notice of such conversion at least 5 Domestic Business Days
prior to such conversion, provided that (i) no Restricted Subsidiary shall be
so converted so long as it owns directly or indirectly any interest in any
Restricted Asset and (ii) no such conversion shall be made if at the time of
such notice or after giving effect to such conversion, any Default would exist.
Upon any such conversion of a Required Guarantor to an Unrestricted Subsidiary
such Subsidiary shall be released from its obligations under the Subsidiary
Guaranty Agreement, and the Agent shall execute such releases and other
documents as such Subsidiary or the Company may reasonably request to further
evidence such release.
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Company shall fail to pay when due any principal
of any Loan, or shall fail to pay within five days of the due date
thereof any interest on any Loan, any fees or any other amount payable
hereunder;
(b) the Company or any Subsidiary shall fail to observe
or perform any covenant contained in Sections 5.05 to 5.18, inclusive;
(c) the Company or any Subsidiary shall fail to observe
or perform any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above) or in the
Subsidiary Guaranty Agreement for 30 days after written notice thereof
has been given to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or
statement made by the Company or any Subsidiary in this Agreement or
in the Subsidiary Guaranty Agreement or made in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Restricted Subsidiary shall fail
to make any payment in respect of any Material Debt (other than the
Notes) when due or within any applicable grace period;
(f) any event or condition shall occur which results in
the acceleration of the maturity of any Material Debt of the Company
or any Restricted Subsidiary (other than the Notes) or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holder of such Material Debt or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(g) the Company or any Restricted Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or
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seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action
to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Company or any Restricted Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Restricted Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $5,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(j) a judgment or order for the payment of money in
excess of $15,000,000 (net of applicable insurance coverage which is
acknowledged by the insurer) shall be rendered against the Company or
any Restricted Subsidiary
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and such judgment or order shall continue unsatisfied and unstayed for
a period of 30 days;
(k) any Person or two or more Persons acting in concert,
together with any affiliates thereof, (i) shall have acquired
beneficial ownership, directly or indirectly, (a) within any 12 month
period, of (1) more than 25% of the Company's common stock or (2)
securities representing more than 25% of the combined voting power of
all securities of the Company entitled to vote in the election of
directors (other than securities having such power only by reason of
the happening of a contingency) ("Voting Securities"), or (b) within
any 24 month period, of (1) more than 40% of the Company's common
stock or (2) more than 40% of the Company's Voting Securities, (ii)
owns a higher percentage of the Company's common stock or Voting
Securities than the percentage owned by Kohlberg Kravis Roberts & Co.
and/or non-operating investment entities it controls, and (iii) either
(a) owns 50% or more of the Company's common stock or Voting
Securities, (b) directly or indirectly elects or causes the election
of Persons constituting in the aggregate a majority of the Board of
Directors of the Company or any Restricted Subsidiary, or (c)
exercises, directly or indirectly, by written agreement, control over
the Company or any Restricted Subsidiary; provided that no Default or
Event of Default shall occur under this subsection (k) until the
Agent, following request by the Required Banks, gives notice to the
Company that such an Event of Default is declared, and such notice may
not be given after the date which is 45 days after the Banks actually
receive notice from the Company to the effect that the matters set
forth in clauses (i), (ii) and (iii) have occurred (for purposes of
this provision, "beneficial ownership" shall mean beneficial ownership
within the meaning of Rule 13d-3 of the Securities and Exchange
Commission promulgated under the Securities Exchange Act of 1934, as
amended, and the number and percentage of securities beneficially
owned by any Person or Persons shall be calculated in accordance with
such Rule); or
(l) any "Event of Default", as defined in Other Credit
Agreement, shall occur;
then, and in every such event, the Agent shall (i) if requested by Banks having
at least 51% in the aggregate amount of the Commitments, by notice to the
Company terminate the Commitments and, upon the giving of such notice by the
Agent, they shall thereupon terminate, and (ii) if requested by Banks holding
Notes evidencing at least 51% in aggregate principal
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amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and, upon the giving of such notice by the
Agent, the Notes shall thereupon become, immediately due and payable without
notice of intent to accelerate, notice of acceleration, presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Company; provided that in the case of any of the Events of Default specified in
clause (g) or (h) above, without any notice to the Company or any other act by
the Agent or the Banks, the Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon) shall become immediately due and
payable without notice of intent to accelerate, notice of acceleration,
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Company under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Financing Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. Each Bank hereby consents and
agrees to the terms of, and authorizes and directs the Agent to enter into, the
Subsidiary Guaranty Agreement.
SECTION 7.02. Agent and Affiliates. NationsBank shall have
the same rights and powers under the Financing Documents as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent, and NationsBank and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Company or any
Subsidiary or other affiliate of the Company as if it were not the Agent
hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
under the Financing Documents are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default, except as expressly
provided in Article VI.
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SECTION 7.04. Consultation with Experts. The Agent may
consult with legal counsel (who may be counsel for the Company or any
Subsidiary), independent public accountants, independent petroleum engineers
and other experts selected by it and the Agent shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants, engineers or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Company
or any Subsidiary; (iii) the satisfaction of any condition specified in Article
III, except receipt of items required to be delivered to the Agent; (iv) the
validity, effectiveness or genuineness of the Financing Documents or any other
instrument or writing furnished in connection herewith; or (v) the accuracy of
any Engineering Report. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with the Financing Documents or any action
taken or omitted by the Agent hereunder (IT BEING EXPRESSLY UNDERSTOOD AND
AGREED THAT, EXCEPT FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS
NEGLIGENCE, SUCH INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE
ORDINARY NEGLIGENCE, WHETHER SOLE OR CONTRIBUTORY, OF THE AGENT).
SECTION 7.07. Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.
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Each Bank also acknowledges that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Company and may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Company shall have the right, with the consent of
the Required Banks, to appoint a successor Agent. If no successor Agent shall
have been so appointed with the consent of the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Banks' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $50,000,000. Upon the acceptance of its appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Financing Documents. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 7.09. Agent's Fees. The Company shall pay to the
Agent for its own account fees in the amounts and at the times previously
agreed upon between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered
to the Reference Banks in the relevant market for such Interest
Period, or
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(b) Banks having 50% or more of the aggregate amount of
the Commitments advise the Agent that the London Interbank Offered
Rate as determined by the Agent will not adequately and fairly reflect
the cost to such Banks of funding their Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans, or make any Conversion (other than changing Euro-Dollar
Loans into Base Rate Loans), shall be suspended, and (ii) unless the Company
notifies the Agent at least two Domestic Business Days before the date of any
Euro-Dollar Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar Loans, or make any
Conversion (other than changing Euro-Dollar Loans into Base Rate Loans), and
such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Company, whereupon until such Bank notifies
the Company and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans, or make
any Conversion (other than changing Euro-Dollar Loans into Base Rate Loans), as
the case may be, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans to maturity and
shall so specify in such notice, each such Euro-Dollar Loan shall be
immediately and automatically Converted into a Base Rate Loan (on which
interest and principal shall be payable
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contemporaneously with the related Euro-Dollar Loans of the other Banks).
SECTION 8.03. Increased Cost and Reduced Return. (a) If
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Bank (or its Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its
Euro-Dollar Loans, its Note or its obligation to make Euro-Dollar
Loans, or shall change the basis of taxation of payments to any Bank
(or its Applicable Lending Office) of the principal of or interest on
its Euro-Dollar Loans or any other amounts due under this Agreement
in respect of its Euro-Dollar Loans or its obligation to make
Euro-Dollar Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Applicable Lending Office
imposed by the jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable Lending Office) or
on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Note or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan or
making any Conversion (other than changing Euro-Dollar Loans into Base Rate
Loans), or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after
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demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction; provided that the Company shall not be obligated
to compensate any Bank for any such reduction attributable to a period (i) more
than 90 days prior to the giving of notice by such Bank to the Company of its
intention to seek compensation under this subsection (a) or (ii) more than six
months prior to the making of demand by such Bank for payment thereof in
accordance herewith.
(b) If any Bank shall have determined that the adoption
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction; provided that the
Company shall not be obligated to compensate any Bank for any such reduction
attributable to a period (i) more than 90 days prior to the giving of notice by
such Bank to the Company of its intention to seek compensation under this
subsection (b) or (ii) more than six months prior to the making of demand by
such Bank for payment thereof in accordance therewith.
(c) Each Bank will promptly notify the Company and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
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SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans
to the Company has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) and the Company shall, by at least
five Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Loans to the Company which would otherwise be
made by such Bank as, or be Converted by such Bank as or into,
Euro-Dollar Loans shall instead be made as, or Converted into, Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other
Banks), and
(b) after each of its Euro-Dollar Loans to the Company
has been repaid, all payments of principal which would otherwise be
applied to repay such Euro-Dollar Loans shall be applied to repay its
Base Rate Loans instead.
SECTION 8.05. Substitution of Bank. If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02,
(ii) any Bank has demanded compensation under Section 8.03 or payment of Taxes
or Other Taxes under Section 2.17, or (iii) after satisfaction of all
applicable conditions precedent, any Bank fails to fund when due any Loan it is
obligated to fund under this Agreement, the Company shall have the right, with
the assistance of the Agent, to seek a mutually satisfactory substitute bank or
banks (which may be one or more of the Banks) to purchase the Notes and assume
the Commitment of such Bank (any such Bank is herein called an "Affected
Bank"). Each Affected Bank agrees to sell, without recourse, all of its
Commitment, its interest in this Agreement and its Note to any such bank for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on the Loans of such Affected Bank and all commitment fees and other
fees and amounts due such Affected Bank hereunder, calculated, in each case, to
the date such Commitment, interest in this Agreement and Note are purchased.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in
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writing (including bank wire, telex, facsimile transmission or similar writing)
and shall be given to such party: (x) in the case of the Company or the Agent,
at its address or telex number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address or telex number as such party may hereafter specify for the purpose by
notice to the Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answer-back is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by facsimile transmission, when such
facsimile is transmitted and accompanied by a telephone call to the party
receiving such transmission or (iv) if given by any other means, when delivered
at the address specified in this Section; provided that notices to the Agent
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent
or any Bank in exercising any right, power or privilege under any Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in
the Financing Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Company
shall pay (i) all reasonable documented out-of-pocket costs and expenses of the
Agent and the Arranger incurred in connection with the syndication of this
Agreement or the preparation of the Financing Documents, any waiver or consent
thereunder or any amendment thereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket costs and
expenses incurred by the Agent or incurred by any Bank, including fees and
disbursements of counsel, in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent, each
Co-Agent, the Arranger and each Bank and hold the Agent, each Co-Agent, the
Arranger and each Bank harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind (including, without limitation,
the reasonable fees and disbursements of counsel for the Agent, any Co-Agent,
the Arranger or any Bank in connection with any investigative,
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administrative or judicial proceedings, whether or not the Agent, such
Co-Agent, the Arranger or such Bank, as the case may be, shall be designated a
party thereto) which may be incurred by the Agent, any Co-Agent, the Arranger
or any Bank, relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder, including specifically, without
limitation, all liabilities, losses, damages, costs and expenses arising out of
a violation of any Environmental Law; provided, that neither the Agent nor any
Co-Agent nor the Arranger nor any Bank shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction (IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT,
EXCEPT FOR SUCH NEGLIGENCE AS IS SO DETERMINED TO CONSTITUTE GROSS NEGLIGENCE,
SUCH INDEMNIFICATION DOES EXTEND TO THE CONSEQUENCES OF THE ORDINARY
NEGLIGENCE, WHETHER SOLE OR CONTRIBUTORY, OF THE INDEMNITEE).
(c) Within a reasonable period of time after any Person
entitled to indemnification under Section 9.03(b) (an "Indemnified Person")
receives actual notice of the assertion of any claim or the commencement of any
action, or any threatened claim or action, covered by Section 9.03(b), such
Indemnified Person shall, if indemnification with respect thereof is to be
sought from the Company under Section 9.03(b), notify the Company in writing of
such claim or action; provided that the failure to so notify the Company shall
not relieve the Company from any liability which the Company may have to the
Indemnified Person under Section 9.03(b) unless the obligations of the Company
under Section 9.03(b) have been significantly increased as a result of such
failure. The Company and such Indemnified Person shall cooperate in the
defense of any such claim or action and shall take those actions reasonably
within their power to take which are necessary to preserve any legal defenses
to such matters. If any such claim or action shall be brought or threatened
against an Indemnified Person, so long as no Event of Default exists, the
Company shall be entitled to participate in the defense thereof, and, with the
consent of such Indemnified Person, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Person. Notwithstanding any
provision hereof to the contrary, no consent order or settlement shall be
entered into in any such claim or action unless both the Company and such
Indemnified Person have given their prior written consent thereto, provided
that such consent of the Company shall not be required if any Event of Default
exists.
(d) All obligations of the Company to indemnify or
otherwise to make payments to the Agent, any Co-Agent, the Arranger or any Bank
provided in this Agreement shall survive
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any termination of the Commitments and the repayment of the Loans.
SECTION 9.04. Sharing of Set-Offs, Etc. Each Bank agrees
that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Company other than its indebtedness under the Notes. The Company agrees, to
the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Company in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived, if, but only if, such
amendment or waiver is in writing and is signed by the Company and the Required
Banks (and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) increase or decrease the Commitment of any Bank or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or
for any reduction or termination of any Commitment, or (iv) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement; provided further that no such amendment or waiver shall amend or
waive Section 5.05(a) or any of the definitions relevant to Section 5.05(a)
unless signed by Banks having at least 66-2/3% of the aggregate amount of the
Commitments or, if the Commitments shall have been terminated, holding Notes
evidencing at least 66-2/3% of the aggregate unpaid principal amount of the
Loans.
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SECTION 9.06. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Company may
not assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Banks.
(b) Any Bank may at any time and from time to time grant
to one or more banks or other institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Company and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section 9.05 without the
consent of the Participant. The Company agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the benefits
of Article VIII with respect to its participating interest. An assignment or
other transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks
or other institutions (each an "Assignee") a proportionate part of all of its
rights and obligations under this Agreement and the Notes in an amount which,
when added to the amount of the rights and obligations under the Other Credit
Agreement contemporaneously assigned by such transferor Bank to such Assignee
pursuant to the second proviso to the first sentence of Section 9.06(c) of the
Other Credit Agreement, equals $10,000,000 or more, and such Assignee shall
assume such rights and obligations under this Agreement and the Notes, pursuant
to an Assignment executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Company and the Agent (which such
consents shall not be unreasonably withheld); provided that if an Assignee is
an affiliate of such transferor Bank or is another Bank, no such consent of the
Company shall be required; provided further that each such assignment shall be
of a
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constant, and not a varying, percentage of all rights and obligations under
this Agreement and the Notes, and the same constant percentage of all rights
and obligations of such transferor Bank under the Other Credit Agreement and
the notes thereunder shall be contemporaneously assigned by such transferor
Bank to such Assignee pursuant to Section 9.06(c) of the Other Credit
Agreement. Upon execution and delivery of such instrument (and delivery to the
Agent of an Administrative Questionnaire with respect to such Assignee, if such
Assignee has not already done so) and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Company shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee. In connection with
any such assignment, the transferor Bank shall pay to the Agent for its account
an administrative fee for processing such assignment in the amount of $2,500
less any administrative processing fee paid to the Agent on the same date under
Section 9.06(c) of the Other Credit Agreement as a result of the
contemporaneous assignment to such Assignee by such transferor Bank under the
Other Credit Agreement pursuant to the second proviso to the first sentence of
this Section 9.06(c). If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall, prior to the first
date on which interest or fees are payable hereunder for its account, deliver
to the Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with
Section 2.17. Notwithstanding the first sentence of this subsection (c), a
Bank may not make an assignment pursuant to this subsection (c) if after giving
effect thereto such Bank would hold less than 1.5% (or until May 1, 1996, 3% in
the case of NationsBank, Bank of America National Trust and Savings Association
and Union Bank of Switzerland, Houston Agency) of the Commitments (for this
purpose such Bank shall be deemed to hold any participating interests granted
by such Bank pursuant to subsection (b) above and any rights assigned pursuant
to subsection (d) below).
(d) Any Bank may at any time assign all or any portion of
its rights under this Agreement and its Note to a Federal Reserve Bank. No
such assignment shall release the transferor Bank from its obligations
hereunder.
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<PAGE> 78
(e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Section
8.03 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02 or 8.03
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to
each Agent and each of the other Banks that it in good faith is not relying
upon any margin stock (as defined in Regulation G) or any margin stock (as
defined in Regulation U) as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION 9.08. Texas Law. This Agreement and each Note
shall be construed in accordance with and governed by the law of the State of
Texas.
SECTION 9.09. CONSENT TO JURISDICTION. THE COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF TEXAS AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE OVER IT IN
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
FINANCING DOCUMENT AND, TO THE FULLEST EXTENT PERMITTED BY LAW, FURTHER AGREES
(AND SHALL NOT CONTEST) THAT THE PROPER VENUE FOR FILING AND MAINTAINING ANY
SUCH ACTION OR PROCEEDING SHALL BE IN THE STATE OF TEXAS. IN ANY SUCH ACTION
OR PROCEEDING, THE COMPANY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS OR NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN
RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS FOR NOTICES HEREUNDER, OR ANY
FORM OF SERVICE PROVIDED FOR IN THE TEXAS CIVIL PRACTICE AND REMEDIES CODE THEN
IN EFFECT SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON THE COMPANY.
SECTION 9.10. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.11. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT,
THE CO-AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.12. COMPLETE AGREEMENT. THIS WRITTEN CREDIT
AGREEMENT AND THE OTHER FINANCING DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE
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<PAGE> 79
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
SECTION 9.13. Liability of Co-Agents and Arranger. Neither
the Arranger nor either Co-Agent, in its capacity as Co-Agent hereunder, shall
have any duty or responsibility hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
UNION TEXAS PETROLEUM
HOLDINGS, INC.
By _______________________________
Title: Vice President and Treasurer
1330 Post Oak Blvd.
Houston, Texas 77056
Telex number: 762255
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<PAGE> 80
Commitments
$16,363,636.37 NATIONSBANK OF TEXAS, N.A.
By _____________________________
Paul A. Squires
Senior Vice President
$12,727,272.73 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By ____________________________
Authorized Officer
$12,727,272.73 UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$10,909,090.91 THE FIRST NATIONAL BANK OF
CHICAGO
By ____________________________
Authorized Officer
$10,909,090.91 CREDIT LYONNAIS
CAYMAN ISLANDS BRANCH
By _____________________________
Authorized Officer
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<PAGE> 81
Commitments
$10,909,090.91 MELLON BANK, N.A.
By ____________________________
Authorized Officer
$10,909,090.91 THE BANK OF NOVA SCOTIA
By ____________________________
Authorized Officer
$10,909,090.91 CHEMICAL BANK
By ____________________________
Authorized Officer
$9,090,909.09 LTCB TRUST COMPANY
By ____________________________
Authorized Officer
$9,090,909.09 SOCIETE GENERALE, SOUTHWEST
AGENCY
By ____________________________
Authorized Officer
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<PAGE> 82
Commitments
$9,090,909.09 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By ____________________________
Authorized Officer
$3,636,363.64 FIRST INTERSTATE BANK OF TEXAS,
N.A.
By ____________________________
Authorized Officer
$6,363,636.36 THE MITSUBISHI TRUST & BANKING
CORPORATION
By ____________________________
Authorized Officer
$10,909,090.91 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By ____________________________
Authorized Officer
$6,363,636.36 BANQUE PARIBAS, HOUSTON AGENCY
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
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Commitments
$6,363,636.36 THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH
By ____________________________
Authorized Officer
$6,363,636.36 CITIBANK, N.A.
By ____________________________
Authorized Officer
$6,363,636.36 NATIONAL WESTMINSTER BANK PLC
By ____________________________
Authorized Officer
$6,363,636.36 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By ____________________________
Authorized Officer
$3,636,363.64 DEN NORSKE BANK AS
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
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<PAGE> 84
Commitments
$3,636,363.64 BANK OF TAIWAN
By ____________________________
Authorized Officer
$6,363,636.36 BANK OF TOKYO, LTD.,
DALLAS AGENCY
By ____________________________
Authorized Officer
$6,363,636.36 CHRISTIANIA BANK
By ____________________________
Authorized Officer
By ____________________________
Authorized Officer
$3,636,363.64 BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By ____________________________
Authorized Officer
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<PAGE> 85
Total Commitments: $200,000,000
=========================
NATIONSBANK OF TEXAS, N.A.,
as Agent
By _______________________________
Paul A. Squires
Senior Vice President
700 Louisiana Street
Houston, Texas 77002
Telex Number: 163244
Answerback: NCNBTEXDAL
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent
By _______________________________
Authorized Officer
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY, as Co-Agent
By _______________________________
Authorized Officer
By _______________________________
Authorized Officer
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Exhibit 10.3
AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
GUARANTY dated as of May 13, 1994 ("Agreement") among each of the
Subsidiary Guarantors listed on the signature pages hereof under the caption
"Subsidiary Guarantors" or which hereafter becomes a party hereto pursuant to
Section 3.08(b) (collectively, the "Subsidiary Guarantors") and NationsBank of
Texas, N.A., as agent for the banks under the Amended and Restated Credit
Agreement referred to below (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of August 31, 1992
among Union Texas Petroleum Holdings, Inc. (the direct or indirect parent of
each of the Subsidiary Guarantors) (the "Company"), the lenders and co-agents
parties thereto and the Agent, as previously amended (the "1992 Agreement"),
the Company was entitled, subject to certain conditions, to borrow up to
$650,000,000;
WHEREAS, each of the Subsidiary Guarantors listed on the signature
pages hereof under the caption "Subsidiary Guarantors" has previously executed
a guaranty ("1992 Guaranty") guaranteeing payment when due of principal,
interest and other amounts payable under the 1992 Agreement and related
documents;
WHEREAS, the Company has requested the Banks, the Agent and the
Co-Agents to further amend the 1992 Agreement and, as so further amended, to
restate it in its entirety, and the Banks, the Agent and the Co-Agents have
agreed to do so on the terms and conditions set forth in the Amended and
Restated Credit Agreement dated as of May 13, 1994 among the Company, the Banks
and the Co-Agents parties thereto ("Amended and Restated Credit Agreement");
WHEREAS, pursuant to the Amended and Restated Credit Agreement, the
Company is entitled, subject to certain conditions, to borrow up to
$350,000,000;
<PAGE> 2
WHEREAS, the Subsidiary Guarantors concur in the decision to amend and
restate the 1992 Agreement;
WHEREAS, the parties hereto have agreed to amend the 1992 Guaranty
and, as so amended, to restate the 1992 Guaranty in its entirety as set forth
herein, and this Amended and Restated Subsidiary Guaranty Agreement constitutes
for all purposes an amendment to the 1992 Guaranty and does not extinguish the
liability of the Subsidiary Guarantors under the 1992 Guaranty but instead
continues such liability on the terms set forth herein;
WHEREAS, as a condition to borrowings under the Amended and Restated
Credit Agreement, each Required Guarantor is required to execute and deliver to
the Agent this Agreement whereby such entity shall, subject to Section 2.08
hereof, guarantee the payment when due of the principal of and interest on all
Loans and all other amounts payable at any time by any Obligor under any of the
Financing Documents or under the 1992 Agreement or any note issued in
connection with the 1992 Agreement, including, without limitation, interest
which accrues during a proceeding which occurs under the U.S. Bankruptcy Code
or which would otherwise accrue under the terms of any of the Financing
Documents, the 1992 Agreement or any note issued in connection with the 1992
Agreement, but for a proceeding under the U.S. Bankruptcy Code (such principal,
interest and other amounts being herein called the "Guaranteed Amounts");
WHEREAS, in consideration of the financial and other support that the
Company has provided, and such financial and other support as the Company may
in the future provide, to the Subsidiary Guarantors and in order to induce the
Banks to enter into the Amended and Restated Credit Agreement and to consider
requests to extend financial accommodations to the Company, the Subsidiary
Guarantors are willing to guarantee, subject to Section 2.08 hereof, the
Guaranteed Amounts;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the Amended and Restated
Credit Agreement and not otherwise defined herein are used herein as therein
defined. In accordance with the preliminary statements set forth before
Section 1.01 of the Amended and Restated Credit Agreement, it is expressly
agreed
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<PAGE> 3
that the term "Loans" as used herein includes, without limitation, all loans
made under the 1992 Agreement as well as each Loan made under the Amended and
Restated Credit Agreement.
ARTICLE II
GUARANTEES
SECTION 2.01. The Guarantees. Subject to Section 2.08, the
Subsidiary Guarantors hereby jointly, severally, unconditionally and
irrevocably guarantee to the Agent, for the ratable benefit of the Banks, the
full and punctual payment of all present and future Guaranteed Amounts as and
when the same shall become due and payable, whether at maturity, by declaration
or otherwise, according to the terms thereof. In case of failure by the
Company punctually to pay any Guaranteed Amount, the Subsidiary Guarantors
hereby jointly, severally and unconditionally agree, forthwith upon demand by
the Agent, to make payment thereof to the Agent at the place and in the manner
specified in the Amended and Restated Credit Agreement.
SECTION 2.02. Guarantees Unconditional. Subject to Section 2.08,
the obligations of each Subsidiary Guarantor under this Article II shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Company or any
other Subsidiary Guarantor under any Financing Document or any
Guaranteed Amount;
(b) any modification or amendment of or supplement to (i)
this Agreement insofar as the same does not purport to modify the
rights or obligations of such Subsidiary Guarantor hereunder or (ii)
any other Financing Document;
(c) any modification, amendment, waiver, release,
non-perfection or invalidity of any direct or indirect security, or of
any guarantee or other liability of any third party, for any
obligation of the Company or any Subsidiary Guarantor under any
Financing Document or any Guaranteed Amount;
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<PAGE> 4
(d) any change in the corporate existence, structure or
ownership of the Company or any Subsidiary, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Company or any other Subsidiary or their respective assets;
(e) the existence of any claim, set-off or other rights
which any Subsidiary Guarantor may have at any time against the
Company or any Subsidiary Guarantor, the Agent, any Bank or any other
Person, whether or not arising in connection with any Financing
Document or any Guaranteed Amount,provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or
against the Company or any Subsidiary Guarantor for any reason of any
Financing Document or any Guaranteed Amount, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Company or any Subsidiary Guarantor of any Guaranteed Amount; or
(g) any other act or omission to act or delay of any kind
by the Company or any Subsidiary Guarantor, the Agent, any Bank or any
other Person or any other circumstances whatsoever that might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the obligations of a Subsidiary Guarantor under this
Article II.
SECTION 2.03. Discharge; Reinstatement in Certain Circumstances.
Subject to Section 2.08, each Subsidiary Guarantor's obligations under this
Article II shall remain in full force and effect until all of the Commitments
shall have been terminated in their entirety and the Guaranteed Amounts shall
have been paid in full. If at any time any payment of or any amount payable by
the Company or any Subsidiary Guarantor in respect of any Guaranteed Amount is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Person or otherwise, each Subsidiary
Guarantor's obligations under this Article II with respect to such payment
shall be reinstated at such time as though such payment had become due but had
not been made at such time.
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<PAGE> 5
SECTION 2.04. Waiver. Each Subsidiary Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Company or any other Subsidiary Guarantor or any other
Person. Each Subsidiary Guarantor hereby irrevocably waives each and every
right to which it may be entitled by virtue of the suretyship laws of the State
of Texas, including, without limitation, any and all rights it may have
pursuant to Rule 31 or Rule 32, Texas Rules of Civil Procedure, Section 17.001
of the Texas Civil Practice and Remedies Code and Chapter 34 of the Texas
Business and Commerce Code.
SECTION 2.05. Subrogation and Contribution. Each Subsidiary
Guarantor irrevocably waives any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of the payee against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Company
in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other Obligor with respect to
such payment, in each case until such time as all of the Commitments shall have
been terminated in their entirety and the Guaranteed Amounts shall have been
paid in full.
SECTION 2.06. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Company or any Subsidiary Guarantor in
respect of any Guaranteed Amount is stayed upon the insolvency, bankruptcy or
reorganization of such Person, all such amounts otherwise subject to
acceleration under the terms of the Amended and Restated Credit Agreement or
any other agreement or instrument evidencing such Guaranteed Amount shall
nonetheless be payable by each other Subsidiary Guarantor hereunder forthwith
on demand by the Agent.
SECTION 2.07. Representations and Warranties. Each Subsidiary
Guarantor represents and warrants that as of the date hereof, and after giving
effect to this Agreement and the contingent obligations evidenced hereby
(including any limitation on the amount payable under this Agreement pursuant
to Section 2.08), it is and will be solvent, and has and will have assets
which, fairly valued, exceed its obligations, liabilities and debts, and has
and will have property and assets sufficient to satisfy and repay its
obligations, liabilities and debts when the same become due.
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<PAGE> 6
SECTION 2.08. Limit of Liability. Each Subsidiary Guarantor shall
be liable under this Agreement only for amounts aggregating up to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provisions of any applicable state or foreign law.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy,
telex, facsimile transmission or similar writing) and (i) in the case of a
Subsidiary Guarantor, shall be given to such Subsidiary Guarantor at c/o Union
Texas Petroleum Holdings, Inc., 1330 Post Oak Boulevard, Houston, Texas 77056
(telex number: 762255) and (ii) in the case of the Company or the Agent, at
its address or telex number set forth on the signature pages of the Amended and
Restated Credit Agreement or in any case at such other address or telex number
as such party may hereafter specify for the purpose by notice to the Agent and
the Company. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answer is received, (ii)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or (iii) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Agent shall not be effective until received.
SECTION 3.02. No Waiver; Exercise of Remedies. No failure or delay
by the Agent in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. In
exercising the rights and remedies herein provided, the Agent shall act at the
instructions of the Required Banks or, failing such instruction, at its
discretion.
SECTION 3.03. Amendments and Waivers. Any provision of this
Agreement may be amended or waived, and any Subsidiary Guarantor may be
released from any of its obligations
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<PAGE> 7
hereunder, if, and only if, such amendment, waiver or release is in writing and
is signed by (i) each Subsidiary Guarantor affected thereby and (ii) the Agent
with the consent of Banks at the time having at least 66-2/3% of the aggregate
amount of the Commitments or, if the Commitments shall have been terminated,
holding Notes evidencing at least 66-2/3% of the aggregate unpaid principal
amount of the Loans; provided that any Subsidiary Guarantor shall be released
from its obligations hereunder upon the terms set forth in Section 5.10 or
Section 5.20 of the Amended and Restated Credit Agreement.
SECTION 3.04. Texas Law. This Agreement shall be construed in
accordance with and governed by the law of the state of Texas.
SECTION 3.05. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF ANY FEDERAL COURT
LOCATED IN SUCH STATE OVER EACH OF THEM IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY FINANCING DOCUMENT AND, TO THE
FULLEST EXTENT PERMITTED BY LAW, FURTHER AGREES (AND SHALL NOT CONTEST) THAT
THE PROPER VENUE FOR FILING AND MAINTAINING ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE IN THE STATE OF TEXAS. IN ANY SUCH ACTION, SUIT OR PROCEEDING, EACH
SUBSIDIARY GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS OR NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN RECEIPT
REQUESTED, TO SUCH SUBSIDIARY GUARANTOR AT ITS ADDRESS FOR NOTICES HEREUNDER,
OR ANY FORM OF SERVICE PROVIDED FOR IN THE TEXAS CIVIL PRACTICE AND REMEDIES
CODE THEN IN EFFECT SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON SUCH
SUBSIDIARY GUARANTOR. EACH SUBSIDIARY GUARANTOR THAT IS NOT ORGANIZED UNDER
THE LAWS OF THE UNITED STATES OR A STATE THEREOF (EACH A "NON-U.S. GUARANTOR")
HEREBY APPOINTS THE PRINCIPAL OFFICE OF CT CORPORATION SYSTEM IN HOUSTON,
TEXAS, WHICH, ON THE DATE HEREOF, IS LOCATED AT 911 DALLAS ST., HOUSTON, TEXAS
77002, AS THE AUTHORIZED AGENT THEREOF (THE "AUTHORIZED AGENT") UPON WHOM
PROCESS MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING WHICH MAY BE
INSTITUTED IN THE STATE OF TEXAS. SUCH APPOINTMENT SHALL BE IRREVOCABLE UNLESS
AND UNTIL THE APPOINTMENT OF A SUCCESSOR AUTHORIZED AGENT FOR SUCH PURPOSE, AND
SUCH SUCCESSOR'S ACCEPTANCE OF SUCH APPOINTMENT, SHALL HAVE OCCURRED AND THE
AGENT SHALL HAVE BEEN NOTIFIED THEREOF. EACH NON-U.S. GUARANTOR AGREES TO TAKE
ANY AND ALL ACTIONS, INCLUDING, WITHOUT LIMITATION, THE FILING OF ANY AND ALL
DOCUMENTS AND INSTRUMENTS, THAT MAY BE NECESSARY TO CONTINUE SUCH APPOINTMENT
IN FULL FORCE AND EFFECT AS AFORESAID. SERVICE OF PROCESS UPON THE AUTHORIZED
AGENT WITH
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<PAGE> 8
RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE DEEMED, IN EVERY
RESPECT, EFFECTIVE SERVICE OF PROCESS UPON ANY SUCH NON-U.S. GUARANTOR. EACH
NON-U.S. GUARANTOR SHALL REQUIRE THE AUTHORIZED AGENT TO AGREE IN WRITING TO
ACCEPT THE FOREGOING APPOINTMENT AS AGENT FOR SERVICE OF PROCESS.
SECTION 3.06. WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 3.07. WAIVER OF SOVEREIGN IMMUNITY. TO THE EXTENT THAT ANY
SUBSIDIARY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY DO SO, SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AGREES, TO THE FULLEST EXTENT IT MAY
LEGALLY DO SO, THAT THE WAIVERS SET FORTH IN THIS SECTION 3.07 SHALL HAVE THE
FULLEST SCOPE PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 OF
THE UNITED STATES AND ARE INTENDED TO BE IRREVOCABLE FOR PURPOSES OF SUCH ACT.
SECTION 3.08. Successors and Assigns.
(a) All of the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Subsidiary Guarantor
may assign or transfer any of its rights or obligations under this
Agreement.
(b) Any Subsidiary may become a party hereto and a
Subsidiary Guarantor hereunder, without any further action by any
other party, by executing and delivering a counterpart hereof to the
Agent.
SECTION 3.09. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single instrument, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 3.10. Judgment Currency. Each Non-U.S. Guarantor agrees to
indemnify the Agent and each Bank against
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<PAGE> 9
any loss incurred by it as a result of any judgment or order being given or
made and expressed and paid in a currency (the "Judgment Currency") other than
United States dollars and as a result of any variation as between (i) the rate
of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Agent or such Bank on the
date of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the Agent
or such Bank. The foregoing indemnity shall constitute a separate and
independent obligation of each Non-U.S. Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
SECTION 3.11. Existence. Each Subsidiary Guarantor agrees to
maintain its existence except as permitted by Section 5.02 of the Amended and
Restated Credit Agreement.
SECTION 3.12. Taxes. (a) Any and all payments by any Subsidiary
Guarantor hereunder shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges and
withholdings, and all liabilities with respect thereto, excluding (i) in the
case of the Agent, each Co-Agent and each Bank, United States federal income
taxes and, without duplication, any taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which the Agent,
such Co-Agent or such Bank, as the case may be, is organized or any political
subdivision thereof and (ii) in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Subsidiary
Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Bank, any Co-Agent or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.12) such Bank, such Co-Agent or the Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Subsidiary Guarantor shall make such deductions
and (iii) such Subsidiary Guarantor shall pay the full amount deducted to the
relevant taxation
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<PAGE> 10
authority or other authority in accordance with applicable law.
(b) Each Subsidiary Guarantor will indemnify each Bank, each
Co-Agent and the Agent for the full amount of Taxes (including, without
limitation, any Taxes imposed by any jurisdiction on amounts payable under this
Section 3.12) paid by such Bank, such Co-Agent or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
legally asserted. Payments under any indemnification provided for in this
Section 3.12(b) shall be made within 30 days from the date such Bank, such
Co-Agent or the Agent (as the case may be) makes written demand therefor.
(c) Within 30 days after the date of any payment of Taxes by a
Subsidiary Guarantor, such Subsidiary Guarantor will furnish to the Agent, at
its address referred to in Section 9.01 of the Amended and Restated Credit
Agreement, the original or a certified copy of a receipt evidencing payment
thereof. Should any Bank, any Co-Agent or the Agent ever receive any refund,
credit or deduction from any taxing authority to which such Bank, such Co-Agent
or the Agent, as the case may be, would not be entitled but for the payment by
a Subsidiary Guarantor of Taxes as required by this Section 3.12 (it being
understood that the decision as to whether or not to claim, and if claimed, as
to the amount of any such refund, credit or deduction shall be made by such
Bank, such Co-Agent or the Agent, as the case may be, in its sole discretion),
such Bank, such Co-Agent or the Agent, as the case may be, thereupon shall
repay to such Subsidiary Guarantor an amount with respect to such refund,
credit or deduction equal to any net reduction in taxes actually obtained by
such Bank, such Co-Agent or the Agent, as the case may be, and reasonably
determined by such Bank, such Co-Agent or the Agent, as the case may be, to be
attributable to such refund, credit or deduction.
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<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date first
above written.
SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM
ENERGY CORPORATION
By:________________________
Title:
UNION TEXAS PRODUCTS CORPORATION
By:________________________
Title:
UNION TEXAS EAST KALIMANTAN
LIMITED
By:________________________
Title:
UNION TEXAS INTERNATIONAL
CORPORATION
By:________________________
Title:
UNISTAR, INC.
By:________________________
Title:
AGENT: NATIONSBANK OF TEXAS,
N.A., as Agent
By:________________________
Title:
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<PAGE> 12
EXHIBIT A
NOTE
Houston, Texas
May 13, 1994
For value received, Union Texas Petroleum Holdings, Inc., a Delaware
corporation (the "Company"), promises to pay to the order of _________________
______________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan owed to the Bank on April 30,
1996 or as otherwise required by the Credit Agreement. The Company promises to
pay interest on the unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Credit Agreement (including, without
limitation, Section 2.16 thereof). All such payments of principal and interest
shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of NationsBank of Texas, N.A., 700
Louisiana St., Houston, Texas 77002.
All Loans made by the Bank and the respective Types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed
by the Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of the Company hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of May 13, 1994 among the Company, the lenders and Co-Agents parties
thereto and NationsBank of Texas, N.A., as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms not defined herein and
defined in the Credit Agreement are used herein with the same
<PAGE> 13
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof. This note shall
be construed in accordance with and governed by the law of the State of Texas.
UNION TEXAS PETROLEUM
HOLDINGS, INC.
By:___________________________
Title:
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<PAGE> 14
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
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Amount of
Amount of Type of Principal Date of Notation
Date Loan Loan Repaid Payment Made By
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<S> <C> <C> <C> <C> <C>
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- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
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</TABLE>
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<PAGE> 1
Exhibit 10.4
SUBSIDIARY GUARANTY AGREEMENT
GUARANTY dated as of May 13, 1994 ("Agreement") among each of the
Subsidiary Guarantors listed on the signature pages hereof under the caption
"Subsidiary Guarantors" or which hereafter becomes a party hereto pursuant to
Section 3.08(b) (collectively, the "Subsidiary Guarantors") and NationsBank of
Texas, N.A., as agent for the banks under the Credit Agreement referred to
below (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of May 13, 1994 among
Union Texas Petroleum Holdings, Inc. (the direct or indirect parent of each of
the Subsidiary Guarantors) (the "Company"), the Banks and Co-Agents parties
thereto and the Agent (the "Credit Agreement"), the Company is entitled,
subject to certain conditions, to borrow up to $200,000,000;
WHEREAS, as a condition to borrowings under the Credit Agreement, each
Required Guarantor is required to execute and deliver to the Agent this
Agreement whereby such entity shall, subject to Section 2.08 hereof, guarantee
the payment when due of the principal of and interest on all Loans and all
other amounts payable at any time by any Obligor under any of the Financing
Documents, including, without limitation, interest which accrues during a
proceeding which occurs under the U.S. Bankruptcy Code or which would otherwise
accrue under the terms of any of the Financing Documents, but for a proceeding
under the U.S. Bankruptcy Code (such principal, interest and other amounts
being herein called the "Guaranteed Amounts");
WHEREAS, in consideration of the financial and other support that the
Company has provided, and such financial and other support as the Company may
in the future provide, to the Subsidiary Guarantors and in order to induce the
Banks to enter into the Credit Agreement and to consider requests to extend
financial accommodations to the Company, the Subsidiary Guarantors are willing
to guarantee, subject to Section 2.08 hereof, the Guaranteed Amounts;
NOW, THEREFORE, the parties hereto agree as follows:
<PAGE> 2
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined.
ARTICLE II
GUARANTEES
SECTION 2.01. The Guarantees. Subject to Section 2.08, the
Subsidiary Guarantors hereby jointly, severally, unconditionally and
irrevocably guarantee to the Agent, for the ratable benefit of the Banks, the
full and punctual payment of all present and future Guaranteed Amounts as and
when the same shall become due and payable, whether at maturity, by declaration
or otherwise, according to the terms thereof. In case of failure by the
Company punctually to pay any Guaranteed Amount, the Subsidiary Guarantors
hereby jointly, severally and unconditionally agree, forthwith upon demand by
the Agent, to make payment thereof to the Agent at the place and in the manner
specified in the Credit Agreement.
SECTION 2.02. Guarantees Unconditional. Subject to Section 2.08,
the obligations of each Subsidiary Guarantor under this Article II shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Company or any
other Subsidiary Guarantor under any Financing Document or any
Guaranteed Amount;
(b) any modification or amendment of or supplement to (i)
this Agreement insofar as the same does not purport to modify the
rights or obligations of such Subsidiary Guarantor hereunder or (ii)
any other Financing Document;
(c) any modification, amendment, waiver, release,
non-perfection or invalidity of any direct or indirect security, or of
any guarantee or other liability of any third party, for any
obligation of
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<PAGE> 3
the Company or any Subsidiary Guarantor under any Financing Document
or any Guaranteed Amount;
(d) any change in the corporate existence, structure or
ownership of the Company or any Subsidiary, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Company or any other Subsidiary or their respective assets;
(e) the existence of any claim, set-off or other rights
which any Subsidiary Guarantor may have at any time against the
Company or any Subsidiary Guarantor, the Agent, any Bank or any other
Person, whether or not arising in connection with any Financing
Document or any Guaranteed Amount,provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or
against the Company or any Subsidiary Guarantor for any reason of any
Financing Document or any Guaranteed Amount, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Company or any Subsidiary Guarantor of any Guaranteed Amount; or
(g) any other act or omission to act or delay of any kind
by the Company or any Subsidiary Guarantor, the Agent, any Bank or any
other Person or any other circumstances whatsoever that might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the obligations of a Subsidiary Guarantor under this
Article II.
SECTION 2.03. Discharge; Reinstatement in Certain Circumstances.
Subject to Section 2.08, each Subsidiary Guarantor's obligations under this
Article II shall remain in full force and effect until all of the Commitments
shall have been terminated in their entirety and the Guaranteed Amounts shall
have been paid in full. If at any time any payment of or any amount payable by
the Company or any Subsidiary Guarantor in respect of any Guaranteed Amount is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Person or otherwise, each Subsidiary
Guarantor's obligations under this Article II with
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<PAGE> 4
respect to such payment shall be reinstated at such time as though such payment
had become due but had not been made at such time.
SECTION 2.04. Waiver. Each Subsidiary Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Company or any other Subsidiary Guarantor or any other
Person. Each Subsidiary Guarantor hereby irrevocably waives each and every
right to which it may be entitled by virtue of the suretyship laws of the State
of Texas, including, without limitation, any and all rights it may have
pursuant to Rule 31 or Rule 32, Texas Rules of Civil Procedure, Section 17.001
of the Texas Civil Practice and Remedies Code and Chapter 34 of the Texas
Business and Commerce Code.
SECTION 2.05. Subrogation and Contribution. Each Subsidiary
Guarantor irrevocably waives any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of the payee against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Company
in respect thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other Obligor with respect to
such payment, in each case until such time as all of the Commitments shall have
been terminated in their entirety and the Guaranteed Amounts shall have been
paid in full.
SECTION 2.06. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Company or any Subsidiary Guarantor in
respect of any Guaranteed Amount is stayed upon the insolvency, bankruptcy or
reorganization of such Person, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement or any other agreement or
instrument evidencing such Guaranteed Amount shall nonetheless be payable by
each other Subsidiary Guarantor hereunder forthwith on demand by the Agent.
SECTION 2.07. Representations and Warranties. Each Subsidiary
Guarantor represents and warrants that as of the date hereof, and after giving
effect to this Agreement and the contingent obligations evidenced hereby
(including any limitation on the amount payable under this Agreement pursuant
to Section 2.08), it is and will be solvent, and has and will have assets
which, fairly valued, exceed its obligations, liabilities and debts, and has
and will have property and
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<PAGE> 5
assets sufficient to satisfy and repay its obligations, liabilities and debts
when the same become due.
SECTION 2.08. Limit of Liability. Each Subsidiary Guarantor shall
be liable under this Agreement only for amounts aggregating up to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provisions of any applicable state or foreign law.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy,
telex, facsimile transmission or similar writing) and (i) in the case of a
Subsidiary Guarantor, shall be given to such Subsidiary Guarantor at c/o Union
Texas Petroleum Holdings, Inc., 1330 Post Oak Boulevard, Houston, Texas 77056
(telex number: 762255) and (ii) in the case of the Company or the Agent, at
its address or telex number set forth on the signature pages of the Credit
Agreement or in any case at such other address or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answer is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent shall not be effective until received.
SECTION 3.02. No Waiver; Exercise of Remedies. No failure or delay
by the Agent in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. In
exercising the rights and remedies herein provided, the Agent shall act at the
instructions of the Required Banks or, failing such instruction, at its
discretion.
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<PAGE> 6
SECTION 3.03. Amendments and Waivers. Any provision of this
Agreement may be amended or waived, and any Subsidiary Guarantor may be
released from any of its obligations hereunder, if, and only if, such
amendment, waiver or release is in writing and is signed by (i) each Subsidiary
Guarantor affected thereby and (ii) the Agent with the consent of Banks at the
time having at least 66-2/3% of the aggregate amount of the Commitments or, if
the Commitments shall have been terminated, holding Notes evidencing at least
66-2/3% of the aggregate unpaid principal amount of the Loans; provided that
any Subsidiary Guarantor shall be released from its obligations hereunder upon
the terms set forth in Section 5.10 or Section 5.20 of the Credit Agreement.
SECTION 3.04. Texas Law. This Agreement shall be construed in
accordance with and governed by the law of the state of Texas.
SECTION 3.05. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF ANY FEDERAL COURT
LOCATED IN SUCH STATE OVER EACH OF THEM IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY FINANCING DOCUMENT AND, TO THE
FULLEST EXTENT PERMITTED BY LAW, FURTHER AGREES (AND SHALL NOT CONTEST) THAT
THE PROPER VENUE FOR FILING AND MAINTAINING ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE IN THE STATE OF TEXAS. IN ANY SUCH ACTION, SUIT OR PROCEEDING, EACH
SUBSIDIARY GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS OR NOTICE AND AGREES THAT SERVICE BY FIRST CLASS MAIL, RETURN RECEIPT
REQUESTED, TO SUCH SUBSIDIARY GUARANTOR AT ITS ADDRESS FOR NOTICES HEREUNDER,
OR ANY FORM OF SERVICE PROVIDED FOR IN THE TEXAS CIVIL PRACTICE AND REMEDIES
CODE THEN IN EFFECT SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE UPON SUCH
SUBSIDIARY GUARANTOR. EACH SUBSIDIARY GUARANTOR THAT IS NOT ORGANIZED UNDER
THE LAWS OF THE UNITED STATES OR A STATE THEREOF (EACH A "NON-U.S. GUARANTOR")
HEREBY APPOINTS THE PRINCIPAL OFFICE OF CT CORPORATION SYSTEM IN HOUSTON,
TEXAS, WHICH, ON THE DATE HEREOF, IS LOCATED AT 911 DALLAS ST., HOUSTON, TEXAS
77002, AS THE AUTHORIZED AGENT THEREOF (THE "AUTHORIZED AGENT") UPON WHOM
PROCESS MAY BE SERVED IN ANY SUCH ACTION, SUIT OR PROCEEDING WHICH MAY BE
INSTITUTED IN THE STATE OF TEXAS. SUCH APPOINTMENT SHALL BE IRREVOCABLE UNLESS
AND UNTIL THE APPOINTMENT OF A SUCCESSOR AUTHORIZED AGENT FOR SUCH PURPOSE, AND
SUCH SUCCESSOR'S ACCEPTANCE OF SUCH APPOINTMENT, SHALL HAVE OCCURRED AND THE
AGENT SHALL HAVE BEEN NOTIFIED THEREOF. EACH NON-U.S. GUARANTOR AGREES TO TAKE
ANY AND ALL ACTIONS, INCLUDING, WITHOUT LIMITATION, THE FILING OF ANY AND
-6-
<PAGE> 7
ALL DOCUMENTS AND INSTRUMENTS, THAT MAY BE NECESSARY TO CONTINUE SUCH
APPOINTMENT IN FULL FORCE AND EFFECT AS AFORESAID. SERVICE OF PROCESS UPON THE
AUTHORIZED AGENT WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE
DEEMED, IN EVERY RESPECT, EFFECTIVE SERVICE OF PROCESS UPON ANY SUCH NON-U.S.
GUARANTOR. EACH NON-U.S. GUARANTOR SHALL REQUIRE THE AUTHORIZED AGENT TO AGREE
IN WRITING TO ACCEPT THE FOREGOING APPOINTMENT AS AGENT FOR SERVICE OF PROCESS.
SECTION 3.06. WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 3.07. WAIVER OF SOVEREIGN IMMUNITY. TO THE EXTENT THAT ANY
SUBSIDIARY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY DO SO, SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AGREES, TO THE FULLEST EXTENT IT MAY
LEGALLY DO SO, THAT THE WAIVERS SET FORTH IN THIS SECTION 3.07 SHALL HAVE THE
FULLEST SCOPE PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 OF
THE UNITED STATES AND ARE INTENDED TO BE IRREVOCABLE FOR PURPOSES OF SUCH ACT.
SECTION 3.08. Successors and Assigns.
(a) All of the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Subsidiary Guarantor
may assign or transfer any of its rights or obligations under this
Agreement.
(b) Any Subsidiary may become a party hereto and a
Subsidiary Guarantor hereunder, without any further action by any
other party, by executing and delivering a counterpart hereof to the
Agent.
SECTION 3.09. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single instrument, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
-7-
<PAGE> 8
SECTION 3.10. Judgment Currency. Each Non-U.S. Guarantor agrees to
indemnify the Agent and each Bank against any loss incurred by it as a result
of any judgment or order being given or made and expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which the Agent or such Bank on the date of payment of such judgment or
order is able to purchase United States dollars with the amount of the Judgment
Currency actually received by the Agent or such Bank. The foregoing indemnity
shall constitute a separate and independent obligation of each Non-U.S.
Guarantor and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
SECTION 3.11. Existence. Each Subsidiary Guarantor agrees to
maintain its existence except as permitted by Section 5.02 of the Credit
Agreement.
SECTION 3.12. Taxes. (a) Any and all payments by any Subsidiary
Guarantor hereunder shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges and
withholdings, and all liabilities with respect thereto, excluding (i) in the
case of the Agent, each Co-Agent and each Bank, United States federal income
taxes and, without duplication, any taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which the Agent,
such Co-Agent or such Bank, as the case may be, is organized or any political
subdivision thereof and (ii) in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Subsidiary
Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Bank, any Co-Agent or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.12) such Bank, such Co-Agent or the Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Subsidiary Guarantor
-8-
<PAGE> 9
shall make such deductions and (iii) such Subsidiary Guarantor shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) Each Subsidiary Guarantor will indemnify each Bank, each
Co-Agent and the Agent for the full amount of Taxes (including, without
limitation, any Taxes imposed by any jurisdiction on amounts payable under this
Section 3.12) paid by such Bank, such Co-Agent or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
legally asserted. Payments under any indemnification provided for in this
Section 3.12(b) shall be made within 30 days from the date such Bank, such
Co-Agent or the Agent (as the case may be) makes written demand therefor.
(c) Within 30 days after the date of any payment of Taxes by a
Subsidiary Guarantor, such Subsidiary Guarantor will furnish to the Agent, at
its address referred to in Section 9.01 of the Credit Agreement, the original
or a certified copy of a receipt evidencing payment thereof. Should any Bank,
any Co-Agent or the Agent ever receive any refund, credit or deduction from any
taxing authority to which such Bank, such Co-Agent or the Agent, as the case
may be, would not be entitled but for the payment by a Subsidiary Guarantor of
Taxes as required by this Section 3.12 (it being understood that the decision
as to whether or not to claim, and if claimed, as to the amount of any such
refund, credit or deduction shall be made by such Bank, such Co-Agent or the
Agent, as the case may be, in its sole discretion), such Bank, such Co-Agent or
the Agent, as the case may be, thereupon shall repay to such Subsidiary
Guarantor an amount with respect to such refund, credit or deduction equal to
any net reduction in taxes actually obtained by such Bank, such Co-Agent or the
Agent, as the case may be, and reasonably determined by such Bank, such
Co-Agent or the Agent, as the case may be, to be attributable to such refund,
credit or deduction.
-9-
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date first
above written.
SUBSIDIARY GUARANTORS:
UNION TEXAS PETROLEUM
ENERGY CORPORATION
By:________________________
Title:
UNION TEXAS PRODUCTS CORPORATION
By:________________________
Title:
UNION TEXAS EAST KALIMANTAN
LIMITED
By:________________________
Title:
UNION TEXAS INTERNATIONAL
CORPORATION
By:________________________
Title:
UNISTAR, INC.
By:________________________
Title:
AGENT: NATIONSBANK OF TEXAS,
N.A., as Agent
By:________________________
Title:
-10-
<PAGE> 11
EXHIBIT A
NOTE
Houston, Texas
May 13, 1994
For value received, Union Texas Petroleum Holdings, Inc., a Delaware
corporation (the "Company"), promises to pay to the order of _________________
______________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan owed to the Bank on April 30,
1996 or as otherwise required by the Credit Agreement. The Company promises to
pay interest on the unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Credit Agreement (including, without
limitation, Section 2.16 thereof). All such payments of principal and interest
shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of NationsBank of Texas, N.A., 700
Louisiana St., Houston, Texas 77002.
All Loans made by the Bank and the respective Types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed
by the Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of the Company hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of May 13, 1994 among the Company, the lenders and Co-Agents parties
thereto and NationsBank of Texas, N.A., as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms not defined herein and
defined in the Credit Agreement are used herein with the same
<PAGE> 12
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof. This note shall
be construed in accordance with and governed by the law of the State of Texas.
UNION TEXAS PETROLEUM
HOLDINGS, INC.
By:___________________________
Title:
-2-
<PAGE> 13
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Date of Notation
Date Loan Loan Repaid Payment Made By
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE> 1
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
-------------------------------------------------------- -------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net pretax income............. $ 246,650 $ 268,886 $ 447,972 $ 213,206 $ 26,983(1) $ 65,218 $ 70,384
Fixed charges
Interest expense............ 72,099 82,244 88,377 20,261 30,506 7,299 6,343
Preferred stock dividends of
a subsidiary............. 7,994 11,791 5,934 4,674 1,681 1,263 --
Capitalized debt cost....... 2,736 2,677 3,044 913 1,536 365 394
Interest portion of rent
expenses................. 6,521 6,915 6,201 2,840 2,777 646 694
--------- --------- --------- --------- -------- -------- --------
Total fixed
charges........... 89,350 103,627 103,556 28,688 36,500 9,573 7,431
Less: Capitalized interest,
net...................... 14,169 13,313 39,852 14,408 4,623 6,186 919
--------- --------- --------- --------- -------- -------- --------
75,181 90,314 63,704 14,280 31,877 3,387 6,512
Earnings before fixed
charges..................... $ 321,831 $ 359,200 $ 511,676 $ 227,486 $ 58,860 $ 68,605 $ 76,896
--------- --------- --------- --------- -------- -------- --------
--------- --------- --------- --------- -------- -------- --------
Ratio of earnings to fixed
charges..................... 3.60 3.47 4.94 7.93 1.61 7.17 10.35
</TABLE>
- ---------------
(1) During the third quarter of 1993, the Company recorded a non-cash charge to
depreciation, depletion and amortization of $103 million pretax ($48 million
after-tax) for the write-down of its investment in the U.K. North Sea's
Piper field. Excluding the effect of the Piper write-down, the ratio of
earnings to fixed charges for 1993 would have been 4.45.
<PAGE> 1
EXHIBIT 12.2
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31, 1993
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
PRO
HISTORICAL ADJUSTMENTS(1) FORMA
---------- ------------- --------
<S> <C> <C> <C>
Net pretax income(2)..................................... $ 26,983 $ (9,007) $ 17,976
Fixed Charges
Interest expense....................................... 30,506 9,007 39,513
Preferred stock dividends of a subsidiary.............. 1,681 1,681
Capitalized debt cost.................................. 1,536 1,536
Interest portion of rent expenses...................... 2,777 2,777
-------- --------- --------
Total fixed charges............................ 36,500 9,007 45,507
Less: Capitalized interest, net........................ 4,623 4,623
-------- --------- --------
31,877 9,007 40,884
Earnings before fixed charges............................ $ 58,860 $ 58,860
-------- --------- --------
-------- --------- --------
Ratio of earnings to fixed charges....................... 1.61 1.29
</TABLE>
- ------------
(1) The pro forma adjustments give effect to increased interest expense, as if
such transaction had taken place January 1, 1993 as a result of the issuance
of $200 million of the Debt Securities at a pro forma annual interest rate
of 8.6% and the application of proceeds to the reduction of debt under the
revolving credit facility and the uncommitted and unsecured lines of credit.
(2) During the third quarter of 1993, the Company recorded a non-cash charge to
depreciation, depletion and amortization of $103 million pretax ($48 million
after-tax) for the write-down of its investment in the U.K. North Sea's
Piper field. Excluding the effect of the Piper write-down, the historical
ratio of earnings to fixed charges for 1993 would have been 4.45. Excluding
the effect of the Piper write-down, this pro forma ratio would have been
3.57.
<PAGE> 2
EXHIBIT 12.2
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
THREE MONTHS ENDED MARCH 31, 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
PRO
HISTORICAL ADJUSTMENTS(1) FORMA
-------- -------------- --------
<S> <C> <C> <C>
Net pretax income........................................ $ 70,384 $ (2,298) $ 68,086
Fixed Charges
Interest expense....................................... 6,343 2,298 8,641
Capitalized debt cost.................................. 394 394
Interest portion of rent expenses...................... 694 694
-------- --------- --------
Total fixed charges............................ 7,431 2,298 9,729
Less: Capitalized interest, net........................ 919 919
-------- --------- --------
6,512 2,298 8,810
Earnings before fixed charges............................ $ 76,896 $ 76,896
-------- --------- --------
-------- --------- --------
Ratio of earnings to fixed charges....................... 10.35 7.90
</TABLE>
- ------------
(1) The pro forma adjustments give effect to increased interest expense, as if
such transaction had taken place January 1, 1994, as a result of the
issuance of $200 million of the Debt Securities at a pro forma annual
interest rate of 8.6% and the application of proceeds to the reduction of
debt under the revolving credit facility and the uncommitted and unsecured
lines of credit.
<PAGE> 1
EXHIBIT 15.1
INDEPENDENT ACCOUNTANTS' AWARENESS LETTER
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Union Texas Petroleum Holdings, Inc. has incorporated by
reference our report dated April 26, 1994 (issued pursuant to the provisions of
Statement on Auditing Standards No. 71) in the Prospectus constituting part of
its Registration Statement on Form S-3 to be filed on or about May 24, 1994. We
are also aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
PRICE WATERHOUSE
Houston, Texas
May 24, 1994
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 26, 1994 appearing on page 29 of Union Texas Petroleum Holdings, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1993. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE
Houston, Texas
May 24, 1994
<PAGE> 1
Exhibit 25.1
Registration No. 33-52683
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)
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)
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)
__________________
UNION TEXAS PETROLEUM HOLDINGS, INC. DELAWARE 76-0040040
UNION TEXAS EAST KALIMANTAN LIMITED THE BAHAMAS N/A
UNION TEXAS PETROLEUM ENERGY CORPORATION DELAWARE 76-0351014
UNION TEXAS INTERNATIONAL CORPORATION DELAWARE 76-6044301
UNION TEXAS PRODUCTS CORPORATION DELAWARE 76-0040039
UNISTAR, INC. DELAWARE 76-0108150
(EXACT NAME OF OBLIGOR AS SPECIFIED (STATE OR OTHER (I.R.S.
IN ITS CHARTER) JURISDICTION OF EMPLOYER
INCORPORATION OR IDENTIFICATION
ORGANIZATION) NO.)
1330 POST OAK BOULEVARD
HOUSTON, TEXAS 77056
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ALL DEBT SECURITIES PURSUANT TO REGISTRATION NO. 33-52683
(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.
8. Not Applicable.
9. Not Applicable.
* EXHIBITS 1,2,3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 26 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE
CIT GROUP HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
OF FEBRUARY 16, 1993 (REGISTRATION NO. 33-58418).
<PAGE> 3
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 State of Illinois, on
the 17th day of May, 1994.
The First National Bank of Chicago,
Trustee
By /s/ STEVEN M. WAGNER
_________________________________
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(B) OF THE ACT
May 17, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of one or more indentures among Union
Texas Petroleum Holdings, Inc., as Issuer, Union Texas Kalimantan Limited,
Union Texas Petroleum Energy Corporation, Union Texas International
Corporation, Union Texas Products Corporation, and Unistar, Inc., as
Guarantors, and The First National Bank of Chicago, as trustee, 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/ STEVEN M. WAGNER
_________________________________
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
<PAGE> 5
EXHIBIT 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.
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 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 DECEMBER 31, 1993
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
RCA-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 3,552,441 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 5,687,085 1.b.
2. Securities (from Schedule RC-B) . . . . . . . . . . . . . . . . . . 0390 470,252 2
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 3,985,638 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 880,886 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 13,308,340 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 339,885 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 12,968,455 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 2146 3,109,630 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 497,559 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . 7 2150 101,446 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 6,375 8.
9. Customers' liability to this bank on acceptances outstanding . . . 2155 477,130 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . 2143 147,257 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 2,607,308 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . 2170 34,491,462 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 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 15,870,533 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . RCON 6631 7,494,138 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCON 6636 8,376,395 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II) . . . . . . . . . RCFN 2200 7,254,022 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . RCFN 6636 6,901,739 13.b.(2)
14. 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 IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . RCFD 0278 2,649,907 14.a.
b. Securities sold under agreements to repurchase . . . . . RCFD 0279 171,899 14.b.
15. Demand notes issued to the U.S. Treasury . . . . . . . . . RCON 2840 106,087 15.
16. Other borrowed money . . . . . . . . . . . . . . . . . . . RCFD 2850 1,782,869 16.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 267,000 17.
18. Bank's liability on acceptance executed and outstanding . . RCFD 2920 477,130 18.
19. Subordinated notes and debentures . . . . . . . . . . . . RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . RCFD 2930 2,049,329 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . RCFD 2948 31,803,776 21.
22. Limited-Life preferred stock and related surplus . . . . . RCFD 3282 0 22.
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 2,254,940 25.
26. a. Undivided profits and capital reserves . . . . . . . . . RCFD 3632 232,478 26.a.
b. LESS: Net unrealized loss on marketable equity
securities . . . . . . . . . . . . . . . . . . . . . . . RCFD 0297 (299) 26.b.
27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (889) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . RCFD 3210 2,687,686 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . RCFD 3300 34,491,462 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most comprehensive
level of auditing work performed for the bank by
independent external auditors as of any date
* * * * * * * * *
during 1992 . . . . . . . . . . . . . . . . * RCFA 6724 N/A * M.1.
* * * * * * * * *
<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.
7
