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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ATLANTIC RICHFIELD COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 23-0371610
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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515 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90071
213-486-3511
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
BRUCE G. WHITMORE, ESQ.
CORPORATE SECRETARY
ATLANTIC RICHFIELD COMPANY
515 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90071
213-486-1774
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF COMMUNICATIONS TO:
DIANE A. WARD, ESQ.
COUNSEL -- SECURITIES & FINANCE
ATLANTIC RICHFIELD COMPANY
515 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90071
213-486-2808
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Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED BY MARKET CONDITIONS.
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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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* REGISTRATION FEE
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Debt Securities............ $1,500,000,000** 100% $1,500,000,000 $417,000
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* Estimated solely for purpose of computing the registration fee.
** Indicates issue price in the case of Debt Securities sold with original issue
discount. Principal amount at maturity will be greater.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until 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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SUBJECT TO COMPLETION, DATED JANUARY 27, 1999
PROSPECTUS
ARCO [LOGO]
ATLANTIC RICHFIELD COMPANY
515 South Flower Street
Los Angeles, California 90071
(213) 486-3511
DEBT SECURITIES
ARCO may periodically issue debt securities on terms determined by market
conditions at the time of sale. The debt securities will be general unsecured
obligations of ARCO. The Company may issue debt securities in one or more
series:
- in various amounts up to an aggregate of $1,500,000,000;
- with various maturity dates and interest payment dates;
- at fixed prices, at prevailing market prices or at negotiated prices;
- at par value, at a premium to par or with an original issue discount;
- for U.S. dollars or foreign currencies;
- represented by certificates or in book-entry form; and
- subject to redemption, exchange or conversion rights by the holder or the
Company.
The debt securities may be sold:
- directly to purchasers by the Company;
- through agents selected by the Company; or
- through underwriters acting alone or as part of an underwriting
syndicate.
This prospectus may be used to offer and sell debt securities only if
accompanied by a prospectus supplement.
The prospectus supplement will include the specific terms of the
offering, the names of the agents and underwriters, if any, the amount
they are to be paid and the amount of net proceeds to the Company.
See "Forward-Looking Statements" on page 4 for discussion of certain risks
that should be considered by prospective buyers of the debt securities.
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SEC OR ANY STATE SECURITIES
COMMISSION, NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
COMPANY MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is , 1999.
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TABLE OF CONTENTS
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PAGE
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PROSPECTUS
About This Prospectus....................................... 3
Where You Can Find More Information......................... 3
Forward-Looking Statements.................................. 4
The Company................................................. 4
Use of Proceeds............................................. 5
Ratio of Earnings to Fixed Charges.......................... 5
Description of Debt Securities.............................. 5
Plan of Distribution........................................ 12
Experts..................................................... 13
Legal Opinion............................................... 13
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that ARCO has filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, ARCO may
sell any combination of the debt securities described in this prospectus in one
or more offerings up to a total dollar amount of $1,500,000,000. This prospectus
provides you with a general description of the debt securities the Company may
offer. Each time the Company sells securities, the Company will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and
any prospectus supplement, together with additional information described under
the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
ARCO files annual, quarterly and special reports, proxy statements and other
information with the SEC. These SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document ARCO files at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms.
The SEC allows public companies to "incorporate by reference" the information
filed with the SEC, which permits companies to disclose important information to
investors and shareholders by referring them to those documents that a company
has incorporated by reference.
The information incorporated by reference is an important part of this
prospectus, and information that ARCO files with the SEC after the date of this
prospectus will automatically update and supersede this information. ARCO
incorporates by reference the following documents and any future filings with
the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 until ARCO sells all $1,500,000,000 of the debt securities (ARCO's file
number with the SEC is No. 1-1196):
- - Annual Report on Form 10-K for the year ended December 31, 1997;
- - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30,
1998 and September 30, 1998; and
- - Current Reports on Form 8-K, dated January 25, 1998, June 3, 1998, June 18,
1998, June 29, 1998, September 30, 1998, November 23, 1998, January 15, 1999,
January 18, 1999 and January 25, 1999.
The debt securities will be governed by one of two almost identical indentures.
The specific indenture will be identified in the prospectus supplement. Both
indentures are filed as exhibits to this registration statement (File No.
333- ) and incorporated by reference in this prospectus.
- - Indenture dated as of May 15, 1985 between ARCO and The Chase Manhattan Bank,
N.A., as trustee.
- - Indenture dated as of January 1, 1992 between ARCO and The Bank of New York,
as trustee.
You may read and copy these documents using the Internet by accessing our web
site at http://www.arco.com.
You may also request a paper copy of these filings at no cost, by writing or
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telephoning the Company at the following address:
Felicia Werts
Securities Regulation Coordinator
Atlantic Richfield Company
515 South Flower Street
Los Angeles, California 90071
(Telephone: 213-486-1450).
You should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. The Company is not making an offer
of these debt securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
FORWARD-LOOKING STATEMENTS
ARCO makes statements in this prospectus and the documents incorporated by
reference that are considered forward-looking statements within the meaning of
the Securities Act of 1933 and the Securities Exchange Act of 1934. Sometimes
these statements will contain words such as "believes," "expects," "intends,"
"plans" and other similar words. These statements are not guarantees of ARCO's
future performance and are subject to risks, uncertainties and other important
factors that could cause our actual performance or achievements to be materially
different from those we may project. These risks, uncertainties and factors
include:
- Worldwide general economic, business and regulatory conditions
- The effect of crude oil and natural gas supply and demand on prices for
these commodities
- The effect of local political and economic conditions on ARCO's oil and
gas exploration, development and production projects throughout the world
- The effect of continued low crude oil prices on ARCO's ability to
economically produce its existing reserves
- ARCO's ability to realize before tax cost savings of $350 million in 1999
and $500 million in 2000 as a result of its global cost reduction program
and to realize its proposed reductions in capital expenditures
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Please see the documents incorporated by reference
for more information on these factors. These forward-looking statements
represent ARCO's estimates and assumptions only as of the date of this
prospectus.
THE COMPANY
The Company began operations in 1866 as the Atlantic Petroleum Storage Company.
In 1966 Richfield Oil Corporation was merged into the Company. Sinclair Oil
Corporation was merged into ARCO in 1969. The Anaconda Company was acquired by
ARCO in 1977 and was merged into ARCO in 1981. ARCO became a Delaware
corporation in 1985.
ARCO is a global oil and gas enterprise. Its upstream exploration and production
operations are focused in Alaska, the Gulf of Mexico (through its 82% owned
subsidiary, Vastar Resources, Inc.), China, Indonesia, the United Kingdom North
Sea, North Africa and Northern South America. The Alaska oil production is
integrated with ARCO's refining and marketing operations in the Western United
States. These include a marine fleet, two refineries and branded consumer
marketing outlets located primarily in five Western states.
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USE OF PROCEEDS
The net proceeds from the sale of the debt securities offered hereby will be
used for general corporate purposes, primarily for the replacement of short-
term debt with long-term debt. The proceeds may also be used for capital
expenditures, the scheduled retirement of long-term debt, and other corporate
purposes. For current information on ARCO's commercial paper balances and
average interest rate, see our most recent Form 10-K and 10-Q. See "Where You
Can Find More Information."
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the five years ended December 31,
1998:
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YEAR ENDED DECEMBER 31,
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1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C>
(1.35)(a) 4.24 4.28 2.43 1.95
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
(deficit) by fixed charges. For this purpose, earnings include income from
continuing operations before income taxes, minority interest and fixed charges.
Fixed charges include interest, amortization of debt expense and the estimated
interest component of rentals.
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(a) In 1998, the negative ratio indicates a less than one-to-one earnings
coverage of fixed charges. Fixed charges of $599 million combined with an
earnings deficit of $809 million per the ratio of earnings to fixed charges
calculation resulted in a $1.4 billion deficiency in a one-to-one earnings
coverage of fixed charges in 1998. The deficiency includes a before tax net
charge of approximately $1.35 billion for asset writedowns, restructuring costs
and a tax refund in the fourth quarter of 1998.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under one of two almost identical indentures:
(1) an indenture dated as of May 15, 1985 between ARCO and The Chase Manhattan
Bank, N.A., as trustee; or (2) an indenture dated as of January 1, 1992 between
ARCO and The Bank of New York, as trustee. Each prospectus supplement will
identify the indenture and the trustee for that particular series of debt
securities. The terms "trustee" and "indenture" are used in this prospectus to
refer to the particular trustee and indenture identified in the prospectus
supplement for each series of debt securities. Because we have included only a
summary of the indenture terms, you must read the indenture in full to
understand every detail of the terms of the debt securities. If you would like
to read the entire indenture, see "Where You Can Find More Information."
GENERAL
The following description of the debt securities sets forth certain general
terms and provisions of the debt securities to which this prospectus and any
prospectus supplement may relate. The particular terms of any series of debt
securities and the extent to which the general provisions may apply to a
particular series of debt securities will be described in a prospectus
supplement relating to that series.
The Company has summarized selected provisions of the indentures below. The
summary is not complete. The forms of the indentures have been filed as exhibits
to this registration statement and you should read the indentures for provisions
that may be important to you. Capitalized terms used in the sum-
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mary have the meanings specified in the indentures.
If you would like more information on these provisions, review the indentures
that we have filed with the SEC. See "Where You Can Find More Information" on
how to locate the indentures.
General. The indenture does not limit the aggregate principal amount of debt
securities that ARCO can issue. The indenture provides for the issuance of debt
securities in one or more series, in an aggregate principal amount authorized by
the board of directors prior to issuance. All securities issued under the
indenture will be general unsecured obligations of ARCO and will rank equally
with all of ARCO's other unsecured and unsubordinated outstanding indebtedness.
The indenture does not limit the amount of other unsecured indebtedness or
securities that ARCO may issue.
Unless otherwise indicated in a prospectus supplement, the debt securities will
not benefit from any covenant or other provision that would afford holders
special protection in the event of a highly leveraged transaction involving the
Company, except for any protection provided by the provisions described below
under "Limitation on Liens" and "Limitations on Sale and Leaseback
Transactions."
A prospectus supplement relating to any series of debt securities being offered
will include specific terms relating to the offering. These terms will include
some or all of the following:
- - the designation of such debt securities;
- - any limit upon the aggregate principal amount and currency or currency unit of
such debt securities;
- - the denominations in which such debt securities are authorized to be issued if
other than $1,000;
- - the percentage of their principal amount at which such debt securities will be
issued;
- - the date on which such debt securities will mature;
- - if the debt securities are to bear interest, the rate per annum at which such
debt securities will bear interest (or the method by which such rate will be
determined);
- - the times at which such interest, if any, will be payable or the manner of
determining the same;
- - the date, if any, after which such debt securities may be redeemed or
purchased and the redemption or purchase price;
- - the sinking fund requirements, if any;
- - special United States federal income tax considerations, if any;
- - information with respect to registration, transfer and exchange and payment of
certificates issued in certificate form, if applicable;
- - the manner in which the amount of any payments of principal and interest on
the debt securities determined by reference to an index are determined; and
- - any other terms of the debt securities not inconsistent with the indenture.
The prospectus supplement may contain information with respect to additional
covenants that may be included in the terms of a series of debt securities.
No service charge will be made for any registration of transfer or exchange of
the debt securities, but the Company may require the holder to pay any
applicable tax or other governmental charge.
LIMITATION ON LIENS
Limitation on Liens. The indenture provides that, so long as any debt securi-
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ties issued under the indenture are outstanding, the Company will not, and will
not permit any of its Restricted Subsidiaries to, issue, assume or guarantee any
indebtedness secured by a mortgage, lien, pledge or other encumbrance ("Liens")
on any Restricted Property of the Company or any of its subsidiaries unless the
debt securities (and any other indebtedness ranking equally with the debt
securities if the Company so determines) will be secured equally and ratably
with (or prior to) such indebtedness so long as such indebtedness is so secured.
This restriction will not apply to:
(1) Liens affecting property of a business existing at the time it is acquired
or at the time it is merged into or consolidated with the Company or a
subsidiary of the Company;
(2) Liens on property existing at the time of acquisition of that property or
incurred to secure payment of the purchase price or to secure indebtedness
incurred prior to, at the time of, or within 24 months after the acquisition
of that property for the purpose of financing all or part of the purchase
price;
(3) Liens on property to secure all or part of the cost of exploration, drilling
or development of the property or all or part of the cost of improving any
property or Liens to secure indebtedness to provide funds for any such
activities;
(4) Liens that secure only indebtedness owing by a subsidiary of the Company to
the Company or to another subsidiary of the Company;
(5) Liens to secure indebtedness incurred in connection with pollution control
or abatement facilities or other forms of industrial revenue bond financing
and Liens to government entities; and
(6) any extension, renewal or replacement of any Lien referred to in clauses (1)
through (5) above.
The Company and any one or more of its Restricted Subsidiaries may, without
securing the debt securities, issue, assume or guarantee indebtedness secured by
a Lien which would otherwise be subject to the Lien restrictions. The aggregate
principal amount of this indebtedness, together with all other indebtedness of
the Company and its Restricted Subsidiaries so secured at any one time, may not
exceed 10% of consolidated net tangible assets of the Company and its
consolidated subsidiaries. Under the indenture, the following types of
transactions will not be deemed to create indebtedness secured by Liens:
(1) the sale or other transfer of oil, gas or other minerals in place for a
period of time until, or in an amount such that, the transferee will realize
therefrom a specified amount (however determined) of money or such minerals,
or the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment; and
(2) Liens required by any contract or statute in order to permit the Company or
a subsidiary of the Company to perform any contract or subcontract made by
it with or at the request of the United States, any state or any department,
agency or instrumentality of either.
The term "indebtedness" of a person means all indebtedness, whether or not
represented by bonds, debentures, notes or other securities, created or assumed
by that person for the repayment of money borrowed and all payment obligations
of that person as
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lessee under capital leases. Under the indenture, all indebtedness upon which a
person customarily pays interest, if secured by a lien upon property owned by
the Company or any subsidiary of the Company, will be deemed to be indebtedness
of such person, although such person has not assumed or become liable for the
payment of such indebtedness. All indebtedness of others guaranteed as to
payment of principal by any person or in effect guaranteed by that person
through a contingent agreement to purchase such indebtedness will also be deemed
to be indebtedness of that person. Indebtedness of a person will not include
amounts payable out of all or a portion of the oil, gas, natural gas, carbon
dioxide, sulphur, helium, coal, metals, minerals, steam, timber or other natural
resources produced, derived or extracted from properties owned or developed by
that person.
The indenture defines the term "consolidated net tangible assets" as the total
amount of assets of the Company and its subsidiaries on a consolidated basis
after deducting:
(1) all current liabilities (excluding any which are, by their terms, extendible
or renewable at the option of the Company or its subsidiaries to a time more
than 12 months after the determination date); and
(2) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangible assets.
The indenture defines the term "subsidiary" of the Company as a corporation more
than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by the Company, by one or more other subsidiaries, or by the Company
together with 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 or not any other class of stock has such voting
power by reason of any contingency.
The term "Restricted Property" means any of the Company's or a subsidiary's oil
or gas producing properties or refining or manufacturing plants (other than such
determined by the board of directors not to be a principal plant) located in the
continental United States, and any shares of capital stock or indebtedness of a
Restricted
Subsidiary.
The term "Restricted Subsidiary" means any subsidiary which owns Restricted
Property unless substantially all such subsidiary's physical properties are
located outside the continental United States.
The indenture also provides that upon any consolidation or merger of the Company
with or into any other corporation, or upon any sale or conveyance of all or
substantially all of its property to any other corporation, if any of the
property of the Company or of any Restricted Subsidiary would thereupon become
subject to any mortgage, lien or pledge, the Company will first secure the debt
securities equally and ratably with any other obligations of the Company or any
Restricted Subsidiary then entitled thereto, by a direct lien on all such
property prior to all liens other than any theretofore existing thereon.
LIMITATION ON SALE AND LEASE-BACK
The Company agrees that neither it nor any Restricted Subsidiary will enter into
any Sale and Lease-Back Transaction with respect to any Restricted Property with
any person (other than the Company or a subsidiary) unless either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions regarding Limitation on Liens, to incur Debt in a principal
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amount equal to or exceeding the Value of such Sale and Lease-Back Transaction
secured by a Lien on the property to be leased without equally and ratably
securing the debt securities, or (b) the Company during or immediately after the
expiration of four months after the effective date of such transaction applies
to the voluntary retirement of its Funded Debt an amount equal to the greater
of: (1) the net proceeds of the sale of the property leased in such transaction
or (2) the fair value in the opinion of the board of directors of the leased
property at the time such transaction was entered into (subject to credits for
certain voluntary retirements of Funded Debt, including the debt securities).
EVENTS OF DEFAULT
Unless otherwise provided with respect to a particular series of debt
securities, the following are events of default under the indenture with respect
to any series of debt securities issued under the indenture:
(1) failure to pay principal of (or premium, if any, on) any debt security of
that series when due;
(2) failure to pay any interest on any debt security of that series when due,
continued for 30 days;
(3) failure to deposit any sinking fund payment, when due, in respect of the
debt securities of that series, continued for 30 days;
(4) failure to perform any other covenant of the Company in the indenture (other
than a covenant included in the indenture solely for the benefit of another
series of debt securities), continued for 90 days after written notice as
provided in the indenture;
(5) certain events of bankruptcy, insolvency or reorganization; and
(6) any other event of default that may be specified with respect to the debt
securities of that series.
If an event of default occurs with respect to any outstanding series of debt
securities as described in clause (1), (2), (3) or (6) above, the principal
amount of all outstanding debt securities of that particular series may be
declared due and payable immediately by either:
(A) the trustee; or
(B) the holders of at least 25% in principal amount of that series.
If an event of default occurs as described in clauses (4) or (5) above, the
principal amount of all outstanding debt securities may be declared due and
payable immediately by either:
(A) the trustee; or
(B) the holders of at least 25% in principal amount of all outstanding debt
securities under the indenture.
At any time after a declaration of acceleration with respect to a series of debt
securities has been made, the holders of a majority in principal amount of the
outstanding debt securities of the series (or holders of a majority in principal
amount of all outstanding debt securities, if the acceleration has been declared
by all holders) may, except in the case of an event of default described in
clauses (1) and (2) above, waive such acceleration. This waiver must be made
before a judgment or decree for payment of the debt securities has been
obtained.
There are no cross-default provisions applicable to any indebtedness outstanding
under the indentures. Depending on the terms of certain other indebtedness of
the Company, such as bank indebtedness, that may be outstanding from time to
time, an event of default under the indenture may give
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rise to cross-defaults on such other indebtedness of the Company.
The indenture requires the Company to file annually with the trustee an
officers' certificate as to the absence of certain defaults under the terms of
the indenture. The indenture provides that the trustee may withhold notice to
the holders of the debt securities of any default (except in payment of
principal or interest) if it considers it in the interest of the holders of the
debt securities to do so.
The indenture provides that the trustee is under no obligation to exercise any
of its rights under the indenture at the direction of the holders of the debt
securities unless such holders shall have offered to the trustee reasonable
indemnity. Subject to such provisions for indemnification, the indenture
provides that the holders of a majority in principal amount of the outstanding
debt securities of the particular series affected have the right to direct the
proceeding for any remedy available to the trustee.
MODIFICATION
Modifications and amendments of the 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 by such change.
However, without the consent of each holder affected by such change, no
modification or amendment may:
(1) extend the fixed maturity date of the principal of, or any installment of
interest on, any debt security;
(2) reduce the principal amount of, or the premium (if any) or interest on, any
debt security;
(3) change the currency, currencies or currency unit or units in which the
principal of, or premium (if any) or interest on, any debt security is to be
paid; or
(4) reduce the percentage in principal amount of outstanding debt securities
required to consent to a modification or amendment of the indenture or to a
waiver of compliance with certain provisions of the indenture or to a waiver
of certain defaults.
CONSOLIDATION MERGER AND SALE OF ASSETS
The Company, without the consent of any holders of outstanding debt securities,
may consolidate with or merger into, or sell or convey its assets substantially
as an entirety to, any other corporation, provided that:
(1) the person formed by such consolidation or into which the Company is merged
or which acquires such assets of the Company expressly assumes by
supplemental indenture the Company's obligations on the debt securities and
under the indenture; and
(2) other conditions described in the indenture are met.
Upon compliance with these provisions, the Company will be relieved of its
obligations under the indenture and the debt securities.
BOOK-ENTRY DEBT SECURITIES --
REGISTRATION, TRANSFER, EXCHANGE AND PAYMENT
ARCO intends to issue each series of debt securities in "book-entry" form,
represented by one or more global certificates registered in the name of The
Depositary Trust Company, New York, New York (referred to as DTC), or its
nominee. However, ARCO reserves the right to issue debt securities in
certificate form registered in the names of the holders of the debt securities.
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Ownership of beneficial interests in the global certificates representing the
particular series of debt securities will be limited to persons who have
accounts with DTC (participants), or persons that may hold interests through
participants. DTC will keep on its computerized book-entry and transfer system a
record of the principal amounts of debt securities held in the accounts of the
participants. Participants, in turn, will keep records of the interests of their
clients who have purchased debt securities through them. Beneficial interests in
the global certificates may be shown only on, and may be transferred only
through, records maintained by DTC and its participants. The laws of some states
require that certain purchasers of securities take delivery of such securities
only in certificate form. Such laws may limit the ability of holders of
beneficial interests in the global certificates to transfer those interests to
certain persons who might otherwise wish to purchase those interests.
DTC has provided us the following information: DTC is a limited-purpose trust
company organized under the New York Banking law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also records the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through computerized records for participant's
accounts. This eliminates the need to exchange certificates. Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as securities
brokers and dealers, banks and trust companies that work through a participant.
The rules that apply to DTC and its participants are on file with the SEC.
DTC is owned by a number of its participants and by the New York Stock Exchange,
Inc., The American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
Payments of interest and principal will be made to DTC, who in turn will credit
payment to the accounts of its participants. It is DTC's current practice, upon
receipt of any payment of principal or interest, to credit participants'
accounts on the payment date according to their respective holdings of
beneficial interests in the global certificates as shown on DTC's records. In
addition, it is DTC's current practice to assign any consenting or voting rights
to participants whose accounts are credited with certificates on a record date,
by using an omnibus proxy. Payments by participants to holders of beneficial
interests in the global certificates, and voting by participants, will be
governed by the customary practices between the participants and holders of
beneficial interests, as is the case with securities held for the account of
customers registered in "street name."
ARCO and the trustee and the paying agent will treat DTC as the sole owner of
the global certificates for all purposes. Accordingly, ARCO, the trustee, and
any paying agent will have no responsibility or liability:
- - for the records relating to beneficial ownership interests in the global
certificates; or
- - for the payments of principal and interest due for the accounts of beneficial
holders of interests in the global certificates.
11
<PAGE> 13
Unless ARCO decides to issue the debt securities in certificate form, the global
certificates representing a series of debt securities may not be transferred.
However, a global certificate may be transferred by DTC to its nominees or
successors.
A series of debt securities represented by global certificates will be
exchangeable for debt securities in certificate form with the same terms in
authorized denominations only if:
- - DTC notifies ARCO that it is unwilling or unable to continue as depositary or
if DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by ARCO within 90 days; or
- - ARCO decides not to require all of the debt securities of a series to be
represented by global certificates and notifies the Trustee of that decision.
ARCO has obtained the foregoing information concerning DTC and DTC's book-entry
system from DTC and other sources it believes reliable, but takes no
responsibility for the accuracy of this information.
CONCERNING THE TRUSTEE
The indenture contains certain limitations on the right of the trustee, as a
creditor of the Company, to obtain payment of claims and to realize on certain
property received with respect to such claims, as security or otherwise. The
trustee is permitted to engage in other transactions, except that, if it
acquires any conflicting interest (as defined), it must eliminate that conflict
or resign. Each of The Chase Manhattan Bank, N.A., trustee under the 1985
Indenture, and The Bank of New York, trustee under the 1992 Indenture, also acts
as trustee under other outstanding series of debt securities of the Company and
extends credit to the Company and its subsidiaries in the ordinary course of
business.
PLAN OF DISTRIBUTION
The Company may sell the debt securities:
(1) through underwriters or dealers,
(2) directly to a limited number of institutional purchasers or to a single
purchaser, or
(3) through agents.
The prospectus supplement with respect to a series of debt securities will set
forth the terms of the offered debt securities, including the name or names of
any underwriters, the purchase price, the proceeds to the Company, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchanges on which the debt
securities may be listed.
If underwriters are used in the sale, the debt securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Unless
otherwise set forth in the prospectus supplement, the obligations of the
underwriters to purchase the debt securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all the
debt securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Debt securities may be sold directly by the Company or through agents designated
by the Company from time to
12
<PAGE> 14
time. Any agent involved in the offer or sale of debt securities in respect of
which this prospectus is delivered will be named, and any commissions payable by
the Company to such agent will be set forth, in the prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
If so indicated in the prospectus supplement, the Company will authorize agents,
underwriters or dealers to solicit offers by certain specified institutions to
purchase debt securities from the Company at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future. Such contracts will
be subject only to those conditions set forth in the prospectus supplement and
the prospectus supplement will set forth the commission payable for solicitation
of such contracts.
Underwriters and agents may be entitled under agreements entered into with the
Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contribution with
respect to payments which the agents or underwriters may be required to make in
respect thereof. Agents and underwriters may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course of
business.
EXPERTS
PricewaterhouseCoopers LLP, formerly known as Coopers & Lybrand L.L.P.,
independent accountants, audited the Company's consolidated financial statements
which are incorporated by reference in this prospectus in reliance on the
authority of PricewaterhouseCoopers LLP, as experts in accounting and auditing.
LEGAL OPINION
The legality of debt securities offered hereby will be passed upon for the
Company by Diane A. Ward, Esq., Counsel -- Securities and Finance of Atlantic
Richfield Company, 515 South Flower Street, Los Angeles, California 90071. As of
December 31, 1998, Ms. Ward owned directly or indirectly approximately 1,834
shares of Common Stock of the Company and owned directly options to purchase 900
shares of such stock.
13
<PAGE> 15
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC registration fee........................................ $417,000
Rating Agency Fees.......................................... 300,000*
Fees and expenses of the Trustee............................ 50,000*
Printing and engraving expenses............................. 100,000*
Accounting fees............................................. 70,000*
Qualification under state securities laws................... 15,000*
Miscellaneous............................................... 5,000*
--------
$957,000
========
</TABLE>
- ---------------
* Estimated and subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 25 of the By-Laws of the Company and to
Section 145 of the General Corporation Law of the State of Delaware as set forth
below.
Section 25 of the By-Laws of the Company provides:
(a) Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved or is threatened to be
involved (as a witness or otherwise) in or otherwise requires
representation by counsel in connection with any threatened, pending or
completed action, suit or proceeding, or any inquiry that such person in
good faith believes might lead to the institution of any such action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or
was a director or officer of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, and the basis of
such proceeding is alleged action or inaction in an official capacity or in
any other capacity while serving as such a director, officer, employee or
agent, shall be indemnified and held harmless by the Company to the fullest
extent authorized by the General Corporation Law of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment
with reference to events occurring prior to the effective date thereof,
only to the extent that such amendment permits the Company to provide
broader indemnification rights than such law permitted the Company to
provide prior to such amendment), against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director or officer (or to serve another entity at the request of the
Company) and shall inure to the benefit of such person's heirs, personal
representatives and estate; provided, however, that, except as provided in
paragraph (b) hereof, the Company shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated
by such person against the Company only if such proceeding (or part
thereof) was authorized prior to its initiation by a majority of the
disinterested members of the Board of Directors of the Company. The rights
to indemnification conferred in this Section shall include the right to be
paid by the Company any expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the
General Corporation Law of Delaware requires, payment shall be made to or
on behalf of a person only upon delivery to the Company of an undertaking,
by or on behalf of such person, to repay all amounts so advanced if it
shall ultimately be determined that such person is not entitled to be
indemnified under this Section or otherwise. The rights to indemnification
conferred in this Section shall be deemed to
II-1
<PAGE> 16
be a contract between the Company and each person who serves in the
capacities described above at any time while this Section is in effect. Any
repeal or modification of this Section shall not in any way diminish any
rights to indemnification of such person or the obligations of the Company
arising hereunder.
(b) Right of claimant to bring suit. If a claim under paragraph (a) of
this Section is not paid in full by the Company within sixty days after a
written claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the unpaid amount
of the claim. If successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting or defending such
claim. In any action brought by the claimant to enforce a right to
indemnification hereunder or by the Company to recover payments by the
Company of expenses incurred by a claimant in a proceeding in advance of
its final disposition, the burden of proving that the claimant is not
entitled to be indemnified under this Section or otherwise shall be on the
Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because the claimant has met
the applicable standard of conduct set forth in the General Corporation Law
of Delaware, nor an actual determination by the Company (including its
Board of Directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct, shall create
a presumption that the claimant has not met the applicable standard of
conduct or, in the case of such an action brought by the claimant, be a
defense to the action.
(c) Non-exclusivity of rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, the Company's Certificate of Incorporation, any By-Law, any
agreement, a vote of Company stockholders or of disinterested Company
directors or otherwise, both as to action in that person's official
capacity and as to action in any other capacity by holding such office, and
shall continue after the person ceases to serve the Company as a director
or officer or to serve another entity at the request of the Company.
(d) Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director or officer of the Company or another
corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Company would have the
power to indemnity such persons against such expense, liability or loss
under the General Corporation Law of Delaware.
(e) Indemnity agreements. The Company may from time to time enter into
indemnity agreements with the persons who are members of its Board of
Directors and with such officers or other persons as the Board may
designate, such indemnity agreements to provide in substance that the
Company will indemnify such persons to the fullest extent of the provisions
of this Section 25.
(f) Indemnification of employees and agents of the Company. The
Company may, under procedures authorized from time to time by the Board of
Directors, grant rights to indemnification, and to be paid by the Company
the expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Company to the fullest extent
of the provisions of this Section 25.
Section 145 of the General Corporation Law of the State of Delaware
provides:
(a) A corporation may 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the
II-2
<PAGE> 17
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust 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. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
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
reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he 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, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit 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 except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to
II-3
<PAGE> 18
which those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
(g) A corporation shall have power 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, partnership, joint venture, trust or other 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 have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
The Company has entered into or will enter into individual indemnity
agreements with each of its present and future directors and officers embodying
the provisions of Section 25 of the By-Laws a form of which indemnity agreement
is included as Exhibit 99.
Pursuant to Section 7 of the Underwriting Agreement, which is Exhibit 1
hereto, the underwriters named therein have agreed to indemnify the Company, its
directors and certain of its officers against certain civil liabilities,
including civil liabilities under the Securities Act of 1933 (the "Act").
The Company carries Directors and Officers Liability Insurance with a limit
of $210 million to the extent authorized by the By-Laws of the Company and the
laws of the State of Delaware.
II-4
<PAGE> 19
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1 Form of proposed Underwriting Agreement.
4.1 Form of proposed Debt Securities.
4.2 Indenture, dated as of May 15, 1985, between the Company and
The Chase Manhattan Bank, N.A., Trustee, relating to the
securities being registered.
4.3 Indenture, dated as of January 1, 1992, between the Company
and The Bank of New York, Trustee, relating to the
securities being registered.
5 Opinion with consent of Diane A. Ward, Esq.,
Counsel -- Securities and Finance of the Company.
12 Statement of computation of ratio of earnings to fixed
charges.
23.1 Consent of Diane A. Ward, Esq., Counsel -- Securities and
Finance of the Company (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney.
25.1 Statement of eligibility of The Chase Manhattan Bank, N.A.,
as Trustee.
25.2 Statement of eligibility of The Bank of New York, as
Trustee.
99 Form of Indemnity Agreement.
</TABLE>
ITEM 17. UNDERTAKINGS.
A. Undertaking Pursuant to Rule 415.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "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 A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-5
<PAGE> 20
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act
Documents by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 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 Exchange Act) 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.
C. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the provisions described and the documents referenced under Item 15 above, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
D. Undertaking Pursuant to Rule 430A.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, 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 Company pursuant to Rule 424(b)(1) or (4) or
497(h) under the 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 Act, 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.
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<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California on the 27th day of
January, 1999.
ATLANTIC RICHFIELD COMPANY
By: * MICHAEL E. WILEY
------------------------------------
Michael E. Wiley
President and Chief
Operating Officer
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* MIKE R. BOWLIN Chairman of the Board,
- ----------------------------------------------------- Chief Executive Officer
Mike R. Bowlin and Director
Principal executive officer
* MARIE L. KNOWLES Executive Vice President
- ----------------------------------------------------- and Chief Financial
Marie L. Knowles Officer
Principal financial officer
* FRANK D. BOREN Director
- -----------------------------------------------------
Frank D. Boren
* JOHN GAVIN Director
- -----------------------------------------------------
John Gavin
* KENT KRESA Director
- -----------------------------------------------------
Kent Kresa
* ARNOLD G. LANGBO Director
- -----------------------------------------------------
Arnold G. Langbo
* DAVID T. MCLAUGHLIN Director
- -----------------------------------------------------
David T. McLaughlin
* JOHN B. SLAUGHTER Director
- -----------------------------------------------------
John B. Slaughter
</TABLE>
January 27, 1999
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<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Director
* GARY L. TOOKER
- -----------------------------------------------------
Gary L. Tooker
* HENRY WENDT Director
- -----------------------------------------------------
Henry Wendt
* GAYLE E. WILSON Director
- -----------------------------------------------------
Gayle E. Wilson
/s/ ALLAN L. COMSTOCK Vice President and
- ----------------------------------------------------- Controller
Allan L. Comstock
Principal accounting officer
</TABLE>
January 27, 1999
*By /s/ ALLAN L. COMSTOCK
---------------------------------
Allan L. Comstock
(Attorney in fact)
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<PAGE> 23
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1 Form of proposed Underwriting Agreement.
4.1 Form of proposed Debt Securities.
4.2 Indenture, dated as of May 15, 1985, between the Company and
The Chase Manhattan Bank, N.A., Trustee, relating to the
securities being registered.
4.3 Indenture, dated as of January 1, 1992, between the Company
and The Bank of New York, Trustee, relating to the
securities being registered.
5 Opinion with consent of Diane A. Ward, Esq.,
Counsel -- Securities and Finance of the Company.
12 Statement of computation of ratio of earnings to fixed
charges.
23.1 Consent of Diane A. Ward, Esq., Counsel -- Securities and
Finance of the Company (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney.
25.1 Statement of eligibility of The Chase Manhattan Bank, N.A.,
as Trustee.
25.2 Statement of eligibility of The Bank of New York, as
Trustee.
99 Form of Indemnity Agreement.
</TABLE>
<PAGE> 1
EXHIBIT 1
Form of Underwriting Agreement
New York, New York
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
Atlantic Richfield Company, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of [ ], between the Company and [ ], as
trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives," as used herein shall each be deemed to
refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further information with
respect to the Securities and the offering thereof required by the
Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such registration
statement prior to the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include
all required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and
any Preliminary Final Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final
1 U.A.
<PAGE> 2
prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration statement,
including the form of final prospectus supplement. In the case of clause
(x), the Company has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering thereof. As
filed, such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, with respect to the Securities
and the offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the rules thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed pursuant
to Rule 424(b) after the Execution Time, together with the Basic Prospectus or,
if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the
2 U.A.
<PAGE> 3
Execution Time (or, if not effective at the Execution Time, in the form in
which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended. Such term shall include any Rule 430A information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus or any Preliminary Final
Prospectus or the date of filing the Final Prospectus pursuant to Rule
424(b), as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all information (other than
Rule 430A Information) with respect to the securities so offered must be
included in such registration statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto, less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such
3 U.A.
<PAGE> 4
Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule II hereto, less
the aggregate principal amount of Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for
the Underwriters' Securities being herein called the "Closing Date"). Delivery
of the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance
of the Closing Date.
Unless the Securities are represented by global securities, the Company
agrees to have the Underwriters' Securities available for inspection, checking
and packaging by the Representatives in New York, New York, not later than 1:00
P.M. on the business day prior to the Closing Date.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Representatives
(i) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts
4 U.A.
<PAGE> 5
to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any amendments
thereof and supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all documents
relating to the offering.
(e) The Company will use reasonable efforts to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until the business day following the Closing Date, the Company will
not, without the consent of the Representatives, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the
Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Underwriters' Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00
P.M. New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 P.M. New York City
time on such date or (ii) 12:00 Noon on the business day following the day
on which the public offering price was determined, if such determination
occurred after 3:00 P.M. New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to Rule
434(b), the Final Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule 434(b); and no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion
of Diane A. Ward, Counsel -- Securities and Finance of the Company, dated
the Closing Date, to the effect that:
5 U.A.
<PAGE> 6
(i) each of the Company and its significant subsidiaries (as defined in
the Act) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock of each such
subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of such subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in
the Final Prospectus; the Securities conform to the description thereof
contained in the Final Prospectus; and, if the Securities are to be listed
on the New York Stock Exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed, or has undertaken to file, a
preliminary listing application and all required supporting documents with
respect to the Securities with the New York Stock Exchange and such counsel
has no reason to believe that the Securities will not be authorized for
listing, subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered, has
been duly qualified under the Trust Indenture Act, and constitutes a legal,
valid and binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriter's Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated in the Final
Prospectus describing any legal proceeding or material contracts or
agreements relating to the Company fairly summarize such matters;
(vi) the Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final Prospectus
and the Final Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened, and the
Registration Statement, as of the Effective Date, and the Final Prospectus,
as of its date and the Closing Date (other than the financial statements
and other financial information contained therein as to which such counsel
6 U.A.
<PAGE> 7
need express no opinion), complied as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Final Prospectus includes any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or in any Delayed Delivery Contracts,
except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been obtained; and
(ix) neither the issued and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a default under the
Certificate of Incorporation or By-Laws of the Company or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries.
In rendering such opinion, such counsel may relay (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York,
the general corporate law of the State of Delaware or the United States, to the
extent deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from [ ], counsel
for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Executive Vice President and Chief Financial
Officer, the Senior Vice President and Treasurer or the Vice President and
Controller of the Company, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
7 U.A.
<PAGE> 8
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus, there has been no material adverse change in the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth or contemplated in
such Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers shall have furnished to
the Representatives a letter, dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder, and
stating in effect that:
(i) in their opinion the audited consolidated financial statements
and financial statement schedules and any pro forma financial statements
included or incorporated in the Registration Statement and the Final
Prospectus and reported on by them and the unaudited Supplemental
Information included or incorporated in the Registration Statement and the
Final Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations thereunder;
(ii) on the basis of (w) a reading of the unaudited financial
statements incorporated in the Registration Statement and the Final
Prospectus and the latest unaudited financial statements made available by
the Company and its subsidiaries, (x) carrying out certain specified
procedures to be designated by the Representatives (but not an audit in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter, (y) a reading of the minutes of the meetings of
the stockholders, directors and executive and other committees of the
Company, and (z) inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of the
most recent audited financial statements incorporated in the Final
Prospectus, nothing came to their attention which caused them to believe
that:
(A) the unaudited financial statements, if any, incorporated in
the Registration Statement and the Final Prospectus do not comply in
form in all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission with
respect to financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not fairly presented in all material
respects (except as permitted by Form 10-Q) in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement and
the Final Prospectus;
(B) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, incorporated in the Registration
Statement and Final Prospectus, there were any changes, at a
specified date not more than five business days prior to the date of
the letter, in the capital stock of the Company or the long-term debt
of the Company and its subsidiaries, except for those changes
resulting from repurchases under the Company's common stock buyback
program, the exercise of stock options, issuance of stock by employee
benefit plans, conversion of equity securities, cancellations of
treasury stock and scheduled debt payments and amortization, as
compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement
and
8 U.A.
<PAGE> 9
the Final Prospectus, or for the period from the date of such most
recent financial statements, to such specified date there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated sales and other operating revenues (including
excise taxes), in income before income taxes, minority interest and
cumulative effect of change in accounting principle, in provision for
income taxes, or in total or per share amounts of net income, of the
Company and its subsidiaries, except in all instances changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives; or
(C) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items 1,2,6 and 7 of
the Company's Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation or, in
certain cases, with schedules prepared by the Company; and
(iv) if pro forma financial statements are included or incorporated in
the Registration Statement and the Final Prospectus, on the basis of a
reading of the unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form in
all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
Reference to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the date as of which
information is given in the Final Prospectus, there shall not have been (i) any
change or decrease of the character described in the letter referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development involving
a prospective change, in or affecting the business or properties of the Company
and its subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, in the judgment of the Representatives, so materially impairs the
investment quality of the Securities as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as contemplated by
such Final Prospectus.
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities having a
maturity of over one year ("long-term debt
9 U.A.
<PAGE> 10
securities") by Moody's Investors Service, Inc. ("Moody's") or Standard &
Poor's Corporation ("S&P") and neither Moody's nor S&P shall have
publicly announced that it has any of such long-term debt securities
under consideration for possible downgrade.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect
to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities which are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
10 U.A.
<PAGE> 11
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
first sentence of the last paragraph of the cover page, in the third paragraph
and the first sentence of the fourth paragraph under the heading "Underwriting"
and, if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under paragraphs (a) and
(b) of this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under paragraphs (a) and (b) of this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under paragraphs (a) and (b) of
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under paragraphs (a) and (b) of this Section 7 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentences (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Representatives in
the case of paragraph (a) of this Section 7, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the
11 U.A.
<PAGE> 12
Underwriters from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount
of Securities set opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities.
12 U.A.
<PAGE> 13
10. REPRESENTATIVES AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Atlantic Richfield Company, 515 South Flower Street, Los
Angeles, California 90071, attention of the Senior Vice President and Treasurer.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13 U.A.
<PAGE> 14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
ATLANTIC RICHFIELD COMPANY
By:
-----------------------------------
Senior Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[Investment Banker]
By:
---------------------------------
Title:
---------------------------------
[Investment Banker]
By:
---------------------------------
Title:
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
14 U.A.
<PAGE> 15
SCHEDULE I
Underwriting Agreement dated ______________, 1999
Registration Statement No.________________
Representatives:
Title, Purchase Price and Description of Securities:
TITLE:
Principal amount:
Purchase price (include
accrued interest or
amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
15 U.A.
<PAGE> 16
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF SECURITIES TO BE
UNDERWRITER PURCHASED
----------- -------------------
<S> <C>
$
------------
Total..................................................... $
============
</TABLE>
16 U.A.
<PAGE> 17
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on , 19 , (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's
Prospectus dated , 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from , 19 ,
to the date of payment and delivery, and on the further terms and conditions
set forth in this contract.
Payment of the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM, New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities to be sold and delivered, shall not be affected by
the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth
17 U.A.
<PAGE> 18
below. This will become a binding contract between the Company and the
undersigned, as of the date first above written, when such counterpart is so
mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By
-----------------------------------
(Signature and Title of Officer)
--------------------------------------
(Address)
Accepted:
Corporation,
By
--------------------------------------
(Authorized Signature)
18 U.A.
<PAGE> 1
EXHIBIT 4.1
FORM OF PROPOSED DEBT SECURITIES
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation, to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of The Depository Trust Company (and
any payment is made to Cede & Co. or such other entity as is requested by an
authorized representative of The Depository Trust Company), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
ATLANTIC RICHFIELD COMPANY
__% DEBENTURE DUE ____ CUSIP ___________
No. $
ATLANTIC RICHFIELD COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), for
value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of $ at the office or agency of the Company in the
Borough of Manhattan, The City of New York, on _____________ in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on _______ and _________ of each year, on said principal sum of
said office or agency, in like coin or currency, at the rate per annum
specified in the title hereof, from the _______ or the _________, as the case
may be, next preceding the date of this Debenture to which interest on the
Debentures has been paid (unless the date hereof is the date to which interest
on the Debentures has been paid, in which case from the date of this
Debenture), or, if no interest has been paid on the Debentures since the
original issue date of this Debenture, from such original issue date, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after the _________ day of
any _____ or _________ and before the first day of the next succeeding _____ or
_______, this Debenture shall bear interest from such _______ or _________;
provided, however, that if the Company shall default in the payment of interest
due on such _______ or _________, then this Debenture shall bear interest from
the next preceding _______ or _________ to which interest on the Debentures has
been paid, or, if no interest has been paid on the Debentures since the
original issue date of this Debenture, from such original issue date. The
interest so payable on any _______ or _________ will, except as provided in the
Indenture dated as of [May 15, 1985] [January 1, 1992] (herein called the
"Indenture") duly executed and delivered by the Company to [The Chase Manhattan
Bank, N.A.]. [The Bank of New York] Trustee (herein called the "Trustee"), be
paid to the person in whose name this Debenture is registered at the close of
business on the _________ day of the next preceding _____ or _________, whether
or not such fifteenth day is a business day, and may, at the option of the
Company, be paid by check mailed to the registered address of such person.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
This Debenture is one of a duly authorized issue of debentures, notes,
bonds or other evidences of Indebtedness of the Company (herein called the
"Securities"), of the series hereinafter specified, all issued or to be issued
under and pursuant to the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase
<PAGE> 2
or analogous funds (if any), may be subject to different covenants and Events of
Default and may otherwise vary as provided in the Indenture. This Debenture is
one of a series of Securities of the Company issued pursuant to the Indenture,
designated as the __% Debenture Due ____ (herein called the "Debentures")
limited in aggregate principal amount to $_________.
In case an Event of Default shall occur and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 50% in aggregate principal
amount at Stated Maturity of the Securities at the time outstanding of each
series affected by such supplemental indenture or indentures, evidenced as
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture as such provisions apply to such
Securities or modifying in any manner the rights of the Holders of the
Securities of each such series; provided, however, that no such supplemental
indenture shall without the consent of the Holder of each outstanding Security
affected thereby (i) extend the fixed maturity of any Security or reduce the
rate or extend the time of payment of interest thereon or reduce the principal
thereof or the time during which premium is payable thereon or make the
principal thereof or any premium or interest thereon payable in any coin or
currency other than that provided in the Securities, or (ii) reduce the
percentage in principal amount at Stated Maturity of the 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 the Indenture or of certain defaults under and their
consequences provided for in the Indenture. Any such consent or waiver by the
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and any Debentures which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium and interest on
this Debenture at the place, at the respective times, at the rate and in the
coin or currency herein prescribed.
The Debentures may not be redeemed prior to [ ].
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any multiple of $1,000. Debentures may be exchanged
for a like aggregate principal amount of Debentures of other authorized
denominations, without charge except for any tax or other governmental charge
imposed in relation thereto, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Debenture at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Debenture or Debentures of authorized denominations for an equal
aggregate principal amount at Stated Maturity will be issued to the transferee
in exchange therefor, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge imposed in
relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and any Debenture registrar may deem
and treat the registered Holder hereof as the absolute owner of this Debenture
(whether or not this Debenture shall be overdue and notwithstanding any
notation of ownership or other writing hereon by anyone other than the Company,
any Debenture registrar or the Trustee), for the purpose of receiving payment
hereof or on account hereof, and for all
2
<PAGE> 3
other purposes (subject to the provisions of the first paragraph hereof), and
neither the Company nor the Trustee nor any paying agent nor any Debenture
registrar shall be affected by any notice to the contrary.
No recourse for the payment of the principal of or premium, if any, or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the indenture or any indenture supplemental thereto
or in any Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as a condition of and as part of the
consideration for the issue hereof, expressly waived and released.
Terms used herein which are defined in the indenture shall have the
meanings assigned to them in the indenture.
IN WITNESS WHEREOF, Atlantic Richfield Company has caused this instrument
to be signed, manually or by facsimile, by its chairman of the Board, its
President or one of its Vice Presidents and by its Treasurer or one of its
Assistant Treasurers, and its corporate seal to be printed engraved or otherwise
reproduced hereof by facsimile or otherwise.
ATLANTIC RICHFIELD COMPANY
By By
---------------------- ------------------------
Senior Vice President Chairman of the Board
and Treasurer
Dated:
--------------
This is one of the securities issued under the within-mentioned indenture.
[THE CHASE MANHATTAN BANK, N.A.] as Trustee
[The Bank of New York]
By
-------------------------------
Authorized Officer
3
<PAGE> 1
Exhibit 4.2
[CONFORMED COPY]
================================================================================
ATLANTIC RICHFIELD COMPANY
AND
THE CHASE MANHATTAN BANK, N.A.,
TRUSTEE
_________________
INDENTURE
Dated as of May 15, 1985
_________________
================================================================================
<PAGE> 2
TIE-SHEET
OF PROVISIONS OF TRUST INDENTURE ACT OF 1939 WITH INDENTURE DATED AS OF MAY 15,
1985, BETWEEN ATLANTIC RICHFIELD COMPANY AND THE CHASE MANHATTAN BANK, N.A.,
TRUSTEE;
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SECTION OF ACT SECTION OF INDENTURE
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310(a)(1) and (2) ................................... 8.09
310(a)(3) and (4) ................................... Not applicable
310(b) .............................................. 8.08 and 8.10(b)
310(c) .............................................. Not applicable
311(a) and (b) ...................................... 8.13
311(c) .............................................. Not applicable
312(a) .............................................. 6.01 and 6.02(a)
312(b) and (c) ...................................... 6.02(b) and (c)
313(a) .............................................. 6.04(a)
313(b)(1) ........................................... Not applicable
313(b)(2) ........................................... 6.04(b)
313(c) .............................................. 6.04(c)
313(d) .............................................. 6.04(d)
314(a) .............................................. 6.03
314(b) .............................................. Not applicable
314(c)(1) and (2) ................................... 15.07
314(c)(3) ........................................... Not applicable
314(d) .............................................. Not applicable
314(e) .............................................. 15.07
315(a)(c) and (d) ................................... 8.01
315(b) .............................................. 7.08
315(e) .............................................. 7.09
316(a)(1) ........................................... 7.01 and 7.07
316(a)(2) ........................................... Omitted
316(a) last sentence ................................ 9.04
316(b) .............................................. 7.04
317(a) .............................................. 7.02
317(b) .............................................. 5.07
318(a) .............................................. 15.09
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This tie-sheet is not part of the indenture as executed.
<PAGE> 3
TABLE OF CONTENTS
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PARTIES................................................................... 1
RECITALS.................................................................. 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions................................................. 1
Authorized Newspaper........................................ 1
Board of Directors.......................................... 2
Business Day................................................ 2
Company..................................................... 2
Consolidated Net Tangible Assets............................ 2
Coupon Security............................................. 2
Event of Default............................................ 3
Fully Registered Security................................... 3
Holder...................................................... 3
Indenture................................................... 3
Interest.................................................... 3
Officers' Certificate....................................... 4
Opinion of Counsel.......................................... 4
Original Issue Date......................................... 4
Original Issue Discount Security............................ 4
Person...................................................... 4
Place of Payment............................................ 5
Principal Office of the Trustee............................. 5
Registered Coupon Security.................................. 5
Registered Holder........................................... 5
Registered Security......................................... 5
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ii
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Responsible Officer......................................... 5
Restricted Property......................................... 5
Restricted Subsidiary....................................... 6
Security or Securities Outstanding.......................... 6
Stated Maturity............................................. 7
Subsidiary.................................................. 7
Trustee..................................................... 8
Trust Indenture Act of 1939................................. 8
Unregistered Security....................................... 8
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
SECTION 2.01. Amount Unlimited; Issuable in Series ....................... 8
SECTION 2.02. Form of Securities and of Trustee's Certificate
of Authentication.............................. .......... 10
SECTION 2.03. Denomination, Authentication and Dating of Securities....... 11
SECTION 2.04. Execution of Securities..................................... 12
SECTION 2.05. Registration, Registration of Transfer and Exchange......... 13
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities............. 15
SECTION 2.07. Temporary Securities........................................ 16
SECTION 2.08. Cancellation of Securities Paid, etc........................ 17
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. Applicability of Article.................................... 17
SECTION 3.02. Notice of Redemption; Selection of Securities............... 18
SECTION 3.03. Payment of Securities Called for Redemption................. 19
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ARTICLE FOUR.
SINKING FUNDS.
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SECTION 4.01. Applicability of Article.................................... 20
SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities................................................ 20
SECTION 4.03. Redemption of Securities for Sinking Fund................... 20
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest.................. 22
SECTION 5.02. Offices for Notices and Payments, etc....................... 22
SECTION 5.03. Limitation on Liens......................................... 23
SECTION 5.04. Limitation on Sale and Lease-Back........................... 25
SECTION 5.05. Definition of "Value........................................ 26
SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office ......... 26
SECTION 5.07. Provision as to Paying Agent................................ 26
SECTION 5.08. Certificate to Trustee...................................... 28
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders Lists .............................................. 28
SECTION 6.02. Preservation and Disclosure of Lists ....................... 29
SECTION 6.03. Reports by the Company ..................................... 30
SECTION 6.04. Reports by the Trustee ..................................... 31
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default .......................................... 33
SECTION 7.02. Payment of Securities on Default; Suit Therefor ............ 36
SECTION 7.03. Application of Moneys Collected by Trustee ................. 38
SECTION 7.04. Proceedings by Holders ..................................... 39
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SECTION 7.05. Proceedings by Trustee ................................... 40
SECTION 7.06. Remedies Cumulative and Continuing ....................... 41
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders ..................................... 41
SECTION 7.08. Notice of Defaults ....................................... 42
SECTION 7.09. Undertaking to Pay Costs ................................. 43
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee ................... 43
SECTION 8.02. Reliance on Documents, Opinions, etc. .................... 45
SECTION 8.03. No Responsibility for Recitals, etc. ..................... 46
SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities .... 46
SECTION 8.05. Moneys to be Held in Trust ............................... 46
SECTION 8.06. Compensation and Expenses of Trustee ..................... 46
SECTION 8.07. Officers' Certificate as Evidence ........................ 47
SECTION 8.08. Conflicting Interest of Trustee .......................... 47
SECTION 8.09. Eligibility of Trustee ................................... 54
SECTION 8.10. Resignation or Removal of Trustee ........................ 54
SECTION 8.11. Acceptance by Successor Trustee .......................... 56
SECTION 8.12. Succession by Merger, etc. ............................... 58
SECTION 8.13. Limitation on Rights of Trustee as a Creditor ............ 58
ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action By Holders ........................................ 63
SECTION 9.02. Proof of Execution by Holders ............................ 64
SECTION 9.03. Who Deemed Absolute Owners ............................... 64
SECTION 9.04. Company-Owned Securities Disregarded ..................... 65
SECTION 9.05. Revocation of Consents; Future Holders Bound ............. 66
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ARTICLE TEN.
HOLDERS' MEETINGS.
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SECTION 10.01. Purposes of Meetings ..................................... 66
SECTION 10.02. Call of Meetings by Trustee .............................. 67
SECTION 10.03. Call of Meetings by Company or Holders ................... 67
SECTION 10.04. Qualification for Voting ................................. 68
SECTION 10.05. Regulations .............................................. 68
SECTION 10.06. Voting ................................................... 69
SECTION 10.07. No Delay of Rights by Meeting ............................ 70
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indentures without Consent of Holders ........ 70
SECTION 11.02. Supplemental Indentures with Consent of Holders ........... 72
SECTION 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures .................................. 73
SECTION 11.04. Notation on Securities .................................... 73
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee ........................................ 73
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms ........... 74
SECTION 12.02. Securities to be Secured in Certain Events ................ 74
SECTION 12.03. Successor Corporation to be Substituted ................... 75
SECTION 12.04. Opinion of Counsel to be Given Trustee .................... 75
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Discharge of Indenture .................................... 76
SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee ........... 76
SECTION 13.03. Paying Agent to Repay Moneys Held ......................... 77
SECTION 13.04. Return of Unclaimed Moneys ................................ 77
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ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
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SECTION 14.01. Indenture and Securities Solely Corporate Obligations ..... 77
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Company's Successors ................ 78
SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders ... 78
SECTION 15.03. Official Acts by Successor Corporation .................... 78
SECTION 15.04. Addresses for Notices, etc. ............................... 78
SECTION 15.05. Notices to Holders; Waiver ................................ 79
SECTION 15.06. New York Contract ......................................... 80
SECTION 15.07. Evidence of Compliance with Conditions Precedent .......... 80
SECTION 15.08. Legal Holidays ............................................ 80
SECTION 15.09. Trust Indenture Act to Control ............................ 81
SECTION 15.10. No Security Interest Created .............................. 81
SECTION 15.11. Table of Contents, Headings, etc. ......................... 81
SECTION 15.12. Execution in Counterparts ................................. 81
SECTION 15.13. Acceptance of Trust ....................................... 81
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<PAGE> 9
1
INDENTURE, dated as of May 15, 1985, between ATLANTIC RICHFIELD COMPANY, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and THE CHASE MANHATTAN BANK, N.A., a national banking
association (the "Trustee").
RECITAL 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 to be issued in one or more
series (the "Securities"), as provided herein.
AGREEMENT
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933, as
amended, (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this Indenture.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper of general
circulation printed in the English language and customarily published on
<PAGE> 10
2
each Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are
authorized hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board duly authorized to act for such Board.
Business Day:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions in The
City of New York.
Company:
The term "Company" shall mean Atlantic Richfield Company, a Delaware
corporation, and subject to the provisions of Article Twelve shall include its
successors and assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the total amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed), and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as set forth on
the most recent balance sheet of the Company and its consolidated Subsidiaries
and computed in accordance with generally accepted accounting principles.
Coupon Security:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more interest coupons appertaining thereto.
<PAGE> 11
3
Event of Default:
The term "Event of Default" shall mean any event specified in Section 7.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
Fully Registered Security:
The term "Fully Registered Security" shall mean any Security registered as to
principal and interest, if any.
Holder:
The term "Holder," "Holder of Securities," or other similar terms, when used
with respect to any Security shall mean a bearer of an Unregistered Security or
a Registered Holder of a Registered Security and when used with respect to any
coupon, means the bearer thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, and
shall include the form and terms of particular series of Securities established
as contemplated hereunder, provided, however, that if at any time more than one
Person is acting as Trustee under this instrument, "Indenture" shall mean with
respect to any one or more series of Securities for which such Person is
Trustee, 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 2.01,
exclusive, however, of any provisions or terms which relate solely to one or
more series of Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any provisions or
terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
Interest:
The term "interest" when used with respect to any series of non-interest
bearing Securities, shall mean interest payable after maturity.
<PAGE> 12
4
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board of Directors, the President, a Chief Operating Officer,
the Chief Corporate Officer, a Vice Chairman of the Board of Directors, or one
of its Vice Presidents and by its Treasurer, one of its Assistant Treasurers,
the Secretary, an Assistant Secretary, the Controller or an Assistant Controller
of the Company. If applicable, each certificate shall include the statements
provided for in Section 15.07 if and to the extent required by the provisions of
such Section. Such certificate shall also mean a certificate of one of the above
officers approving the form, terms and conditions of Securities of a particular
series pursuant to Section 2.01.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of, or of counsel to the Company, or may
be other counsel. Each such opinion shall include the statements provided for in
Section 15.07 if, and to the extent, required by the provisions of such Section.
Original Issue Date:
The term "original issue date" of any Security (or portion thereof) shall
mean the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean 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 7.01.
Person:
The term "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
<PAGE> 13
5
Place of Payment:
The term "Place of Payment" for a series of Securities shall mean the Place
or Places of Payment designated for each series pursuant to Section 2.01(5).
Principal Office of the Trustee:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, at which at any particular time its corporate
trust business shall be administered and which on the date hereof is at One New
York Plaza, New York, New York 10081 (except that with respect to presentation
of Securities for payment and transfer, such term shall mean the office or
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted).
Registered Coupon Security:
The term "Registered Coupon Security" shall mean any Coupon Security
registered as to principal only.
Registered Holder:
The term "Registered Holder," when used with respect to a Registered
Security, shall mean the person in whose name such Security is registered on the
books of the Company kept for that purpose in accordance with the terms hereof.
Registered Security:
The term "Registered Security" shall mean any Security registered on the
books of the Company.
Responsible Officer:
The term "Responsible Officer" shall mean any officer to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
Restricted Property:
The term "Restricted Property" shall mean:
(a) any property interest owned by the Company or a Subsidiary in land
located in the continental United States of America (which for the
<PAGE> 14
6
purposes hereof shall include any property located off the coast of the
continental United States of America on which the Company or any Subsidiary
conducts operations pursuant to leases, rights or other authorizations from the
United States of America or any state thereof located within the continental
United States of America) and classified by such owner as productive of crude
oil, natural gas or other petroleum hydrocarbons in paying quantities;
(b) any refining plant or manufacturing plant owned by the Company or a
Subsidiary and located in the continental United States of America, except (1)
related facilities which in the opinion of the Board of Directors are
transportation or marketing facilities, and (2) a refining plant or
manufacturing plant which in the opinion of the Board of Directors is not a
principal plant of the Company and its Subsidiaries; and
(c) any shares of capital stock or indebtedness of a Restricted Subsidiary.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary which owns any
Restricted Property, except a Subsidiary substantially all the physical
properties of which are located outside the continental United States of
America.
Security or Securities outstanding:
The terms "Security" or "Securities" shall have the meaning stated in the
recital of this Indenture and shall mean any Security or such Securities, as the
case may be, authenticated and delivered pursuant to this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee
under this instrument, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the recital and shall
more particularly mean Securities authenticated and delivered pursuant to this
instrument, exclusive of Securities of any series as to which such Person is not
Trustee.
The term "outstanding," when used with reference to Securities or
Securities of any series shall, subject to the provisions of Section 9.04, mean,
as of any particular time, all such Securities authenticated and delivered by
the Trustee pursuant to this Indenture, except:
<PAGE> 15
7
(a) such Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been mailed as
provided in Article Three, or provision satisfactory to the Trustee shall have
been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.06 except to the extent that a bona fide holder in due course of any such
Securities shall have presented proof satisfactory to the Trustee that such
holder is a bona fide holder in due course of any such Securities.
In determining whether the Holders of the requisite principal amount of
outstanding Securities of a series have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof determined in accordance with Section
7.01.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of the
outstanding securities of which having ordinary voting power to elect a majority
of the board of directors of such corporation (whether or not any other class of
securities has or might have voting power by reason of the
<PAGE> 16
8
happening of a contingency) is at the time owned or controlled directly or
indirectly by the Company or one or more Subsidiaries or by the Company and one
or more Subsidiaries.
Trustee:
The term "Trustee" shall mean The Chase Manhattan Bank, N.A., until another
or a successor trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean and include each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to the Securities of that
series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939 as it was in force at the date of execution of this Indenture, except as
provided in Section 11.03.
Unregistered Security:
The term "Unregistered Security" shall mean any Security or temporary
bearer Security not registered as to principal.
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series of
Securities shall be established (i) in an indenture supplemental hereto, (ii) in
a resolution of the Board of Directors or (iii) by the certificate of an officer
of the Company pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of all other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
<PAGE> 17
9
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.05, 2.06, 2.07, 3.03 or
11.04):
(3) the date or dates on which the principal and premium, if any, of
the Securities of the series are payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the formula by which interest shall be calculated, the
date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the
determination of Holders thereof to whom interest is payable;
(5) the place or places where the principal of, and premium, if any,
and any interest on Securities of the series shall be payable (herein
called the "Place of Payment"); provided, however, that payment of
principal, premium, if any, and interest with respect to Registered
Securities may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
registry books of the Company, as defined in Section 2.05;
(6) the price or prices at which, the period or periods within 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, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount at Stated Maturity thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity
<PAGE> 18
10
thereof pursuant to Section 7.01 or provable in bankruptcy pursuant to
Section 7.02 or the method by which such portion of the principal amount
shall be determined;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(11) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(12) the securities will be issued in such form and such manner so
that the Company will not be prohibited from receiving a deduction for
interest paid thereon under Section 163(f) of the Internal Revenue Code of
1954, as amended.
All Securities of any series issued under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or maturity of the Securities of
such series. All Securities of the same series shall be substantially identical
except as to denomination and except as may otherwise be provided in (i) an
indenture supplemental hereto, (ii) a resolution of the Board of Directors or
(iii) a certificate of an officer of the Company pursuant to a resolution of the
Board of Directors.
SECTION 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Securities of each series, the appurtenant coupons, if any,
and the certificates of authentication thereon shall be in substantially the
form as shall be established as provided in Section 2.01 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may be determined consistently
herewith by the officers executing such Securities and coupons, if any, as
evidenced by their execution of the Securities and coupons, if any.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
<PAGE> 19
11
The form of Trustee's certificate of authentication shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By______________________________________
Authorized Officer
SECTION 2.03. Denomination, Authentication and Dating of Securities. The
Securities of each series may be issued as registered Securities or unregistered
Securities, as provided in the terms of such Securities and shall be issuable in
the denominations of $1,000 and any integral multiple of $1,000, or such other
denominations as authorized as provided in Section 2.01. Each Security shall be
dated as of the date of its authentication.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this
Article Two, the Trustee shall thereupon authenticate and deliver said
Securities to or upon the written order of the Company, signed by the Chairman
of the Board, its President, a Chief Operating Officer, the Chief Corporate
Officer, a Vice Chairman of the Board of Directors or one of its Vice Presidents
and by its Treasurer or one of its Assistant Treasurers. 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 8.01, shall be fully protected in relying upon:
(1) A copy of the resolution or resolutions of the Board of Directors
in or pursuant to which the terms and form of the Securities were
established, 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 as of the date of such certificate, and if the terms
and form of such Securities are established by the certificate of an
<PAGE> 20
12
officer of the Company pursuant to general authorization of the Board of
Directors, an Officers' Certificate setting forth the action taken pursuant
to such authorization;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate delivered in accordance with Section
15.07; and
(4) an Opinion of Counsel which shall state:
(a) that the form of such Securities has been established by a
supplemental indenture or by or pursuant to a resolution of the Board of
Directors in accordance with Section 2.02 and in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities have been established in
accordance with Section 2.01 and in conformity with the other provisions of
this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees or vice presidents shall determine that such
action would expose the Trustee to personal liability to existing Holders.
SECTION 2.04. Execution of Securities. The Securities, and any coupons
appertaining thereto, shall be signed in the name and on behalf of the Company
manually or by facsimile by its Chairman of the Board of
<PAGE> 21
13
Directors, its President, a Chief Operating Officer, the Chief Corporate
Officer, a Vice Chairman of the Board of Directors or one of its Vice Presidents
and by its Treasurer or one of its Assistant Treasurers, under its corporate
seal (which may be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise). Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security or coupon may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such
Securities or coupons, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was not such an
officer.
SECTION 2.05. Registration, Registration of Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes referred to
as the "registry books of the Company") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and the registration of transfers of Registered
Securities. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers shall
be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 5.02.
Upon surrender of any Registered Security of any series for registration of
transfer at the office or agency of the Company to be maintained as provided in
Section 5.02, 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 such series of any
<PAGE> 22
14
authorized denominations and of a like aggregate principal amount and Stated
Maturity.
At the option of the Holder thereof, Securities of a series whether
Registered or Unregistered, which by their terms are registrable as to principal
only or as to principal and interest, may be exchanged for Registered Coupon
Securities or Fully Registered Securities of such series, as may be issued by
the terms thereof. At the option of the Holder thereof, Securities of a series,
whether Registered or Unregistered, which by their terms provide for the
issuance of Unregistered Securities, may be exchanged for Unregistered
Securities of such series. Securities so issued in exchange for other Securities
shall be of any authorized denomination and of like principal amount and Stated
Maturity and shall be issued upon surrender of the Securities for which they are
to be exchanged and, in the case of Coupon Securities, together with all
unmatured coupons and all matured coupons in default appertaining thereto, at
the office of the Company provided for in Section 5.02 and upon payment, if the
Company shall require, of charges provided herein. Whenever any Securities are
so surrendered, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making such exchange is entitled to
receive.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 5.02, such
Security shall be registered as to principal in the name of the Holder thereof
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the registry books of the Company, upon
presentation of such Security at such office or agency for similar notation
thereon, but such Security may be discharged from registration by being in like
manner transferred to bearer, whereupon transferability by delivery shall be
restored. Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.
Unregistered Securities shall be transferable by delivery. Registration of
any Coupon Security shall not affect the transferability by delivery of the
coupons appertaining thereto which shall continue to be payable to bearer and
transferable by delivery.
<PAGE> 23
15
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 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 duly executed, by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or exchanged,
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 relation thereto.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series for a period of 15 days next preceding any
selection of Securities of such series to be redeemed, or (ii) to register the
transfer or exchange of any Securities so selected for redemption in whole or in
part except, in the case of any Security to be redeemed in part, the portion
thereof not to be so redeemed.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security or any coupon appurtenant to a Coupon Security
shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon written authorization or request of any officer
of the Company, the Trustee shall authenticate and deliver, a new Security (in
the case of a Coupon Security, with coupons corresponding to the coupons
appertaining to the mutilated, destroyed, lost or stolen Security or the
Security with respect to which a coupon shall have become mutilated, destroyed,
stolen or lost) of the same series and of like tenor and principal amount at
Stated Maturity bearing a number not contemporaneously outstanding. In every
case the applicant for a substituted Security shall furnish to the Company and
to the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof. In every case of
<PAGE> 24
16
mutilation, the applicant shall surrender to the Trustee, the mutilated Security
or the Security to which the mutilated coupon appertains, in the case of a
Coupon Security, with all coupons (including any mutilated coupons) appertaining
thereto.
Upon the issuance of any substituted Security, 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 connected therewith.
In case any Security or coupon which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Security or coupon, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security or
coupon) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as may be required by them to save each
of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the destruction, loss or theft of
such Security or coupon and of the ownership thereof.
Every substituted Security, and in the case of Coupon Securities, its
appurtenant coupons, issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any Security or coupon of that series is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security or coupon of that series
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
coupons of that series duly issued hereunder. All Securities and coupons shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and coupons and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.07. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee shall
authenticate, and deliver printed or lithographed temporary Securities.
Temporary Securities shall be issuable in any authorized denomination, and
<PAGE> 25
17
substantially in the form of the definitive Securities of that series, but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security of any series shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of that series. Without unreasonable delay, the
Company will execute and deliver to the Trustee definitive Securities of that
series and thereupon any or all temporary Securities of that series may be
surrendered in exchange therefor, at the Principal Office of the Trustee, and
the Trustee shall authenticate and deliver in exchange for such temporary
Securities an equal aggregate principal amount at Stated Maturity of definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. 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 that series authenticated and delivered hereunder.
SECTION 2.08. Cancellation of Securities Paid, etc. Securities of any
series surrendered for the purpose of payment, redemption, exchange or
registration of transfer and all coupons surrendered for payment, shall, if
surrendered to the Company or any paying agent, be surrendered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be cancelled by it,
and no Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture or of such series of
Securities. The Trustee shall destroy cancelled Securities or coupons and
deliver a certificate of such destruction to the Company. If the Company shall
acquire any of the Securities or coupons, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or coupons unless and until the same are surrendered to the Trustee
for cancellation.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. Applicability of Article. The Company may reserve the right
to redeem and pay, prior to Stated Maturity, all or any part of the
<PAGE> 26
18
Securities of any series, either by optional redemption. sinking fund or
otherwise, by provision therefor in the Security for such series established
pursuant to Sections 2.01 and 2.02. Redemption of Securities of any series shall
be made in accordance with the terms of such Securities and, to the extent that
this Article does not conflict with such terms, in accordance with this Article.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all or any part of the
Securities of a series in accordance with their terms, it shall fix a date for
redemption and shall mail a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to each Holder of a
Registered Security to be redeemed as a whole or in part at his address as the
same appear on the registry books of the Company and, if Unregistered Securities
are to be redeemed, shall publish a notice of redemption at least 30 and not
more than 60 days prior to the date fixed for redemption in an Authorized
Newspaper in the Place of Payment. If mailed in the manner herein provided, the
notice shall be conclusively presumed to have been duly given, whether or not
any such Holder receives such notice. Any defect in the notice to the Holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price, the place where such Securities are to be surrendered for
payment of the redemption price, which shall be the office or agency of the
Company in each Place of Payment, that payment will be made upon presentation
and surrender of such Securities and all coupons appertaining thereto, if any,
that accrued interest, if any, to the redemption date will be paid as specified
in said notice, and that on and after said date, interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case the redemption is
on account of a sinking fund, said notice shall so specify. If less than all the
outstanding Securities of a series are to be redeemed, the notice of redemption
shall specify the numbers of the Securities of that series to be redeemed. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of that series in the
principal amount and Stated Maturity equal to the unredeemed portion thereof
will be issued.
<PAGE> 27
19
If fewer than all the Securities of a series are to be redeemed, the
Company shall give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount at Stated Maturity of
Securities to be redeemed, and the Trustee shall select from the Securities
outstanding in such manner as in its sole discretion it shall deem appropriate
and fair the Securities of that series or portions thereof to be redeemed.
Securities of a series may be redeemed in part only in multiples of $1,000,
except as otherwise set forth in the form of Security to be redeemed.
Any notice of redemption to be mailed by the Company pursuant to this
Section 3.02 may be mailed, at the Company's direction, by the Trustee in the
name and at the expense of the Company.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been mailed or published, as the case may be as above provided,
the Securities or portions of Securities of a series with respect to which such
notice has been mailed or published shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with accrued interest to the redemption date and on and after said date
(unless the Company shall default in the payment of such Securities at the
applicable redemption price, together with accrued interest, if any, to said
date) any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue, and such Securities and portions of
Securities of any series shall be deemed not to be outstanding hereunder and
shall not be entitled to any benefit under this Indenture except to receive
payment of the redemption price, together with accrued interest, if any, to the
date fixed for redemption. On the redemption date specified in the notice of
redemption, the Company shall deposit with the Trustee or with one or more
paying agents an amount of money, in immediately available funds, sufficient to
redeem on the redemption date all the Securities so called for redemption at the
applicable redemption price, together with accrued interest, if any, to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with accrued interest, if any, to the date fixed for
redemption.
<PAGE> 28
20
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee, upon the written request or order of any officer of the
Company, shall authenticate and deliver to the Holder thereof, at the expense of
the Company, a new Security or Securities of such series, of authorized
denominations in aggregate principal amount and Stated Maturity equal to the
unredeemed portion of the Security so presented.
ARTICLE FOUR.
SINKING FUNDS.
SECTION 4.01. 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 2.01 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."
SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that 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; provided, however, 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
mandatory sinking fund payment shall be reduced accordingly.
SECTION 4.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities,
<PAGE> 29
21
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 4.02,
which Securities will accompany such certificate, if not theretofore delivered,
and whether the Company intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall also state that no Event of Default with respect to such series has
occurred and is continuing.
Any mandatory or optional sinking fund payment or payments made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $50,000 (or a lesser sum if the Company shall so
request) with respect to Securities of any particular series shall be applied by
the Trustee on the sinking fund payment date on which such payment is made (or,
if such payment is made prior to a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such
Securities at the redemption price specified in such Securities for operation of
the sinking fund together with accrued interest to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee
to the redemption of Securities shall be added to the next cash sinking fund
payment received by the Trustee for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 4.03. Any and
all sinking fund moneys with respect to the Securities of any particular series
held by the Trustee on the last sinking fund payment date with respect to such
Securities, and not held for the payment or redemption of particular Securities,
shall be applied by the Trustee, to the payment of the principal of the
Securities of that series at maturity.
The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the penultimate paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
<PAGE> 30
22
On each sinking fund payment date, the Company shall pay to the Trustee
in immediately available funds a sum equal to all accrued interest to the date
fixed for redemption on Securities to be redeemed on such sinking fund payment
date pursuant to this Section 4.03.
The Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail or publish any notice of redemption of such Securities by
operation of the sinking fund for such series during the continuance of a
default in payment of interest on such Securities or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph),
except that if the notice of redemption of any such Securities shall theretofore
have been mailed or published in accordance with the provisions hereof, the
Trustee shall redeem Securities if cash sufficient for that purpose shall be
deposited with the Trustee for that purpose in accordance with the terms of this
Article Four. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of all
Securities of such series; provided, however, that in case such default or Event
or Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on the next sinking fund payment date for such Securities
on which such moneys may be applied pursuant to the provisions of this Section
4.03.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of the Securities that it
will duly and punctually pay or cause to be paid the principal of and premium,
if any, and interest, if any, on the Securities of that series in accordance
with the terms thereof and this Indenture and will comply with all other forms,
agreements and conditions contained in or made in this Indenture for the benefit
of such Securities.
SECTION 5.02. Offices for Notices and Payments, etc. So long as any
Securities of any series remain outstanding, the Company will maintain in
<PAGE> 31
23
the Borough of Manhattan, The City of New York, a Place of Payment as an office
or agency where the Securities of that series may be presented for payment, an
office or agency where the Securities of that series may be presented for
registration of transfer and for exchange as provided in this Indenture and an
office or agency where notices and demands to or upon the Company in respect of
the Securities of that series or of this Indenture may be served; provided,
however, that in the case of any Security issued in bearer form in the
Eurodollar Market, the office for payment of bearer Securities and coupons
appertaining thereto will be located in London, England. The Company will give
to the Trustee written notice of the location of any such office or agency and
of any change of location thereof. In case the Company shall fail to maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made at
the Principal Office of the Trustee (or at any other address previously
furnished in writing to the Company by the Trustee) and notices may be served at
the Principal Office of the Trustee. The Company initially appoints the Trustee
its agent for payment, for registration of transfers, for exchange of the
Securities and where notices and demands may be served upon the Company.
Notwithstanding any other provisions to the contrary, the Company at its
option may make payment of Registered Securities by mail as provided in
Section 2.01.
SECTION 5.03. Limitation on Liens. Nothing in this Indenture or in the
Securities shall in any way restrict or prevent the Company or any Subsidiary
from incurring any indebtedness; provided that the Company covenants and agrees
that neither it nor any Restricted Subsidiary will issue, assume or guarantee
any notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed (notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed being hereinafter in this Article Five called
"Debt") secured by mortgage, lien, pledge or other encumbrance (mortgages,
liens, pledges or other encumbrances being hereinafter in this Article Five
called "Mortgages") upon any Restricted Property, without effectively providing
that the Securities of each series then outstanding and thereafter created
(together with, if the Company so determines, any other indebtedness or
obligation then existing and any other indebtedness or obligation thereafter
created ranking equally with the Securities then existing or thereafter created
which is not subordinated to the Securities of each series) shall be secured
equally and ratably with (or prior to) such Debt so long as such Debt shall be
so secured, except that the foregoing provisions shall not apply to:
<PAGE> 32
24
(a) Mortgages affecting property of a corporation existing at the time
it becomes a Subsidiary or at the time it is merged into or consolidated with
the Company or a Subsidiary;
(b) Mortgages on property existing at the time of acquisition thereof or
incurred to secure payment of all or part of the purchase price thereof or to
secure Debt incurred prior to, at the time of or within 24 months after
acquisition thereof for the purpose of financing all or part of the purchase
price thereof;
(c) Mortgages on property to secure all or part of the cost of
exploration, drilling or development thereof or (in the case of property which
is, in the opinion of the Board of Directors, substantially unimproved for the
use intended by the Company) all or part of the cost of improvement thereof, or
to secure Debt incurred to provide funds for any such purpose;
(d) Mortgages which secure only an indebtedness owing by a Subsidiary to
the Company or a Subsidiary;
(e) Mortgages in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or cost of constructing or
improving the property subject thereto, including, without limitation, Mortgages
to secure Debt of the pollution control or industrial revenue bond type; or
(f) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Mortgage referred to in
the foregoing clauses (a) to (e) inclusive or of any Debt secured thereby,
provided that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Mortgage shall be
limited to all or part of substantially the same property which secured the
Mortgage extended, renewed or replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 5.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by Mortgages which would otherwise be subject to
<PAGE> 33
25
the foregoing restrictions in an aggregate principal amount which, together with
the aggregate outstanding principal amount of all other Debt of the Company and
its Restricted Subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (a) to
(f) inclusive above) and the aggregate Value, as defined in Section 5.05, of the
Sale and Lease-Back Transactions, as defined in Section 5.04, in existence at
such time (not including Sale and Lease-Back Transactions as to which the
Company has complied with Section 5.04(b)), does not at any one time exceed 10%
of the Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries.
The following types of transactions, among others, shall not be deemed
to create Debt secured by Mortgage:
(1) the sale or other transfer of oil, gas or other minerals in place
for a period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money or such
minerals, or the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment; and
(2) Mortgages required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by it with
or at the request of the United States of America, any State or any department,
agency or instrumentality of either.
SECTION 5.04. Limitation on Sale and Lease-Back. The Company covenants
and agrees that neither it nor any Restricted Subsidiary will enter into any
arrangement with any Person (other than the Company or a Subsidiary), or to
which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary for a period of more than three years of any Restricted
Property which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person (other than the
Company or a Subsidiary), to which funds have been or are to be advanced by such
Person on the security of the leased property (in this Article Five called "Sale
and Lease-Back Transactions") unless either:
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 5.03, to incur Debt in a principal amount
equal to or exceeding the Value of such Sale and Lease-Back
<PAGE> 34
26
Transaction, secured by Mortgage on the property to be leased, without equally
and ratably securing the Securities; or
(b) the Company (and in any such case the Company covenants and agrees
that it will do so) during or immediately after the expiration of four months
after the effective date of such Sale and Lease-Back Transaction (whether made
by the Company or a Restricted Subsidiary) applies to the voluntary retirement
of indebtedness of the Company (including Securities, provided that Securities
may only be redeemed at the redemption prices and in accordance with the other
provisions of the form thereof), maturing by the terms thereof more than one
year after the original creation thereof and ranking at least pari passu with
the Securities (hereinafter in this Section called "Funded Debt") an amount
equal to the Value of such Sale and Lease-Back Transaction, less the principal
amount of Securities delivered, within four months after the effective date of
such arrangement, to the Trustee for retirement and cancellation and the
principal amount of other Funded Debt voluntarily retired by the Company within
such four-month period, excluding retirements of Securities and other Funded
Debt as a result of conversions or pursuant to mandatory sinking fund or
prepayment provisions or by payment at maturity.
SECTION 5.05. Definition of "Value." For purposes of Sections 5.03 and
5.04, the term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds of the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (2) the fair value, in the opinion of the
Board of Directors, of such property at the time of entering into such Sale and
Lease-Back Transaction, in either case divided first by the number of full years
of the term of the lease and then multiplied by the number of full years of such
term remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee
for any one or more series of Securities, will appoint a Trustee, in the manner
provided in Section 8.10 so that there shall at all times be a Trustee with
respect to each series of Securities hereunder.
SECTION 5.07. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee with respect to the Securities
<PAGE> 35
27
of any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 5.07
(1) that it will hold all sums held by it as such agent for the payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series; and
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series when the same shall be due and payable.
(b) If the Company shall act as its own paying agent with respect to the
Securities of any series it will, on or prior to each due date of the principal
of and premium, if any, or interest, if any, on any of the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of
such Securities or the coupons appertaining thereto, as the case may be, a sum
sufficient to pay such principal and premium, if any, or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor under such Securities) to
make any payment of the principal of and premium, if any, or interest, if any,
on such Securities when the same shall become due and payable.
(c) Whenever the Company shall have one or more paying agents with
respect to the Securities of any series it will deposit with a paying agent, on
each due date of the principal of and premium, if any, or interest, if any, on
any Securities of such series, a sum in immediately available funds sufficient
to pay the principal and premium, if any, or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Holders of such Securities
or the coupons appertaining thereto, as the case may be, 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;
provided, however, that in the case of any payment of principal, premium, if
any, or interest on any Security issued in bearer form in the Eurodollar Market,
the Company will deposit with the paying agent, on the Business Day next
preceding the due date in funds available on the due date the principal of,
premium, if any, or interest on said Security.
(d) Anything in this Section 5.07 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
<PAGE> 36
28
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 5.07, such sums to be held by the Trustee upon the
trusts herein contained.
(e) Anything in this Section 5.07 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.07 is subject to
Sections 13.03 and 13.04.
SECTION 5.08. Certificate to Trustee. The Company will deliver to the
Trustee on or before September 1 in each year during which any Securities are
outstanding hereunder (beginning with respect to Securities of each series with
the September 1 next following the issue date of any series of Securities) an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company they would normally have
knowledge of any default by the Company in the performance of any covenants
contained in Sections 5.03, 5.04, 12.01 or 12.02, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, with respect to the
Registered Securities of each series (i) semi-annually, not later than each
interest payment date for such series and on dates to be determined pursuant to
Section 2.01 for non-interest bearing Securities in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders, as of the respective record dates therefor, and on dates to be
determined pursuant to Section 2.01 for non-interest bearing Securities, and
(ii) at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders as of a
date not more than 15 days prior to the time such information is
<PAGE> 37
29
furnished; provided, however, that so long as the Trustee shall be the registrar
of a series of Securities all of which are Registered Securities, such list
shall not be required to be furnished in respect of that series.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Registered
Securities of any series contained in the most recent list furnished to it as
provided in Section 6.01 or received by the Trustee in its capacity as
Securities registrar. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of the same series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with Holders of
Securities of all series with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit for such purpose, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 6.02, or
(2) inform such applicants as to the approximate number of Holders of
Securities of such series or of all series, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 6.02 and as to
the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or of all series, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a)
<PAGE> 38
30
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all series, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If said Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each Holder of any Security or coupon or both, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held accountable by reason
of the disclosure of the name and address of such Holder in accordance with the
provisions of subsection (b) of this Section 6.02, 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
said subsection (b).
SECTION 6.03. Reports by the Company. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required to
file the same with the Securities and Exchange 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 said Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
said Commission pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports
<PAGE> 39
31
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to each Holder
of Securities, in the manner and to the extent provided in Section 6.04, within
30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before December 15 in
every year after the first series of Securities is issued hereunder, so long as
any Securities are outstanding hereunder, the Trustee shall transmit to the
Holders, as hereinafter in this Section 6.04 provided, a brief report dated as
of the preceding October 15 with respect to:
(1) its eligibility under Section 8.09 and its qualification under
Section 8.08 or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written statement
to such effect;
(2) the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not
<PAGE> 40
32
more than 1/2 of 1% of the principal amount at Stated Maturity of the Securities
outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any manner described
in paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13;
(4) the property and funds, if any, physically in the possession of the
Trustee, as such, on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects any of the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance with
the provisions of Section 7.08.
(b) The Trustee shall transmit to the Holders, as hereinafter provided,
a brief report with respect to the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such), since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this Section 6.04
(or, if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities, on property or funds held or
collected by it as Trustee, and which it has not previously reported pursuant to
this subsection, except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of Securities at Stated Maturity outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Registered Holders of Securities, as the names and addresses
of such Holders appear in the registry books of the Company;
<PAGE> 41
33
(2) to such Holders of Securities as have, within the two years
preceding such transmission, 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 whose name and address is preserved at the time by the
Trustee, as provided in Section 6.02.
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed and also with the Securities and Exchange Commission. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default. "Event of Default," whenever used
herein with respect to Securities of any series means each one of the following
events unless it is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture under which such
series of Securities is issued, if any, or in the form of Security for such
series:
(a) default in the payment of any installment of interest upon any
Security of that series when the same becomes due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Securities of that series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment or analogous
obligation as and when the same shall become due and payable by the terms of
that series, and continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
<PAGE> 42
34
Securities of such series or in this Indenture (other than a covenant or
agreement in respect of the Securities of such series a default in the
performance of which or the breach of which is elsewhere in this Section 7.01
specifically provided for or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than such
series), and continuance of such default or breach for a period of 90 days after
the date on which written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount at Stated Maturity of the Securities of that series at the time
outstanding; or
(e) if there shall be entered a decree or order by a court having
jurisdiction for relief in respect of the Company under the Federal Bankruptcy
Code, as now constituted or as hereafter amended, or any other applicable
Federal or State bankruptcy law or other similar law, or appointing a receiver,
trustee or liquidator, 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 unstayed and in
effect for a period of 90 consecutive days; or
(f) if the Company shall file a petition or an answer or consent seeking
relief under the Federal Bankruptcy Code, as now constituted or as hereinafter
amended, or any other applicable Federal or State bankruptcy law or other
similar law, or shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking possession by a
receiver, trustee, custodian or other similar official of the Company or of any
substantial part of its property, or the Company shall make an assignment for
the benefit of creditors generally or shall admit in writing to its inability to
pay its debts generally as they become due; or
(g) any other Event of Default provided in the form of Security for such
series, or in the supplemental indenture under which such series of Securities
is issued, if any.
If an Event of Default described in clauses (a), (b), (c) or (g) with respect to
Securities of any series at the time outstanding, then and in each and every
such case, unless the principal of all the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of
<PAGE> 43
35
not less than 25% in aggregate principal amount at Stated Maturity of the
Securities of such series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare the principal
amount (in the case of Securities that are Original Issue Discount Securities,
such principal amount as may be determined in accordance with the terms of that
series) of all the Securities of such series to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. If an Event of Default described in
clauses (d), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount at Stated Maturity of all the Securities then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be determined in accordance with the terms of that series) of all the
Securities to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. The
foregoing provisions are, however, subject to the condition that if, at any time
after the principal amount (in the case of Securities that are Original Issue
Discount Securities, such portion of the principal amount as may be determined
in accordance with the terms of that series) of the Securities of any series or
of all the Securities, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series or of all of the
Securities, as the case may be, and the principal of and premium, if any, on all
Securities of such series or of all the Securities, as the case may be, which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and premium, if any, at
the rate of interest or yield to maturity (in the case of Original Issue
Discount Securities) borne by the Securities of such series or at the rates of
interest or yields to maturity of all
<PAGE> 44
36
the Securities, as the case may be, to the date of such payment or deposit) and
the reasonable expenses of the Trustee, and any and all defaults under this
Indenture, other than the nonpayment of principal of or premium, if any, or
accrued interest, if any, on Securities of such series or of all of the
Securities, as the case may be, which shall have become due by acceleration,
shall have been remedied - then and in every such case the Holders of a majority
in aggregate principal amount at Stated Maturity of the Securities of such
series or of all of the Securities, as the case may be, then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults with
respect to that series or of all of the Securities, as the case may be, and
rescind and annul such declaration and its consequences; but no waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 7.02. Payment of Securities on Default; Suit Therefor. The
Company covenants that in case (1) default shall be made in the payment of any
installment of interest upon any Security of any series as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, or (2) default shall be made in the payment of the principal of or
premium, if any, on any Security of any series as and when the same shall have
become due and payable, whether at maturity of Securities of that series or
otherwise, or (3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due by the terms of
the Securities of any series and such default shall continue for a period of 30
days - then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the Holder of any such Security, the whole amount that then
shall have become due and payable on any such Security for principal and
premium, if any, or interest, if any, or both, as the case may be, with interest
upon the overdue principal and premium, if any, and (to the extent that payment
of
<PAGE> 45
37
such interest is enforceable under applicable law) upon the overdue installments
of interest at the rate of interest or yield to maturity (in the case of
Original Issue Discount Securities) borne by any such Security and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree 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, wherever situated, of the Company or
any other obligor upon such Securities.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under the Federal Bankruptcy Code, as now constituted or as hereafter
amended, or any other Federal or State bankruptcy law or other similar law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee (irrespective of whether the principal of any Securities of any
series 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
pursuant to the provisions of this Section 7.02) shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and premium, if any, and
interest, if any, owing and unpaid in respect of the Securities of any series
(in the case of Securities that are Original Issue Discount Securities, such
principal amount as would be then due and payable upon declaration of
acceleration in accordance with the terms of that series) and, in case of any
judicial proceedings, to file such proofs of
<PAGE> 46
38
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and of the Holders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, its or their creditors, or its or their property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of its charges and expenses; and
any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders 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 compensation and expenses, including counsel fees incurred by it up to
the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
approve, consent, accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee with respect to the Securities of any series shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Securities in respect of which
such action is taken.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee with respect to any series of Securities under this
Article Seven shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys on account of
principal, premium, if any, or interest, if any, upon presentation of the
several Securities of such series or the coupons appertaining thereto, as the
case may be, and stamping thereon 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 8.06
hereof;
<PAGE> 47
39
SECOND: In case the principal of the outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest on
the Securities of that series, in the order of the maturity of the installments
of such interest with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the rate
of interest (or yield to maturity in the case of Original Issue Discount
Securities) borne by the Securities of that series, such payments to be made
ratably to the Persons entitled thereto;
THIRD: In case the principal of the outstanding Securities of a series
in respect of which such moneys have been collected shall have become due and
payable, by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of that series for principal and premium,
if any, and interest, if any, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by the
Trustee) upon any overdue installments of interest at the rate of interest (or
yield to maturity in the case of Original Issue Discount Securities) borne by
the Securities of that series, and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of that
series, then to the payment of such principal and premium, if any, and interest,
if any, without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Security of that series over any other Security of that series, ratably to the
aggregate of such principal and premium, if any, and any accrued and unpaid
interest. Any surplus then remaining shall be paid to the Company or to such
other Person as shall be entitled to receive it.
SECTION 7.04. Proceedings by Holders. No Holder of any Security of any
series or of any coupon appertaining thereto shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount at Stated Maturity of the Securities of that series (or, in
case of an Event of Default described in clause (d), (e) or (f) of
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Section 7.01, 25% in aggregate principal amount of all Securities then
outstanding (in the case of Original Issue Discount Securities, such principal
amount to be determined as provided in the definition of "Securities")) shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as the Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee during such 60 day period by the Holders of a majority in principal
amount at Stated Maturity of the outstanding Securities of such series, it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security of that series with every other taker and Holder of every
Security of that series or coupons appertaining thereto and the Trustee, that no
one or more Holders of Securities of any series 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 Holder of Securities of
that series or any other series or coupons appertaining thereto, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security or coupon to receive payment of the
principal of, and premium, if any, and interest, if any, on such Security, on or
after the respective Stated Maturities expressed in such Security or, in the
case of redemption or repayment on or after the redemption date or repayment
date, as the case may be, and to institute suit for the enforcement of any such
payment on or after such respective date shall not be impaired or affected
without the consent of such Holder.
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee, in its discretion, may proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement
<PAGE> 49
41
of any Covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders of
Securities or coupons shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or such Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by
the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Securities of all series affected (voting as one class) (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Securities") at the time outstanding 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, provided, however, that (subject to the provisions of Section
8.01) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
by its board of directors or trustees, executive committee, or a trust committee
of directors or trustees or Responsible Officers shall determine that the action
or proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of the Securities of a
particular series (or all of the Securities as the case may be), the Holders of
a majority in aggregate principal amount at Stated Maturity of the Securities of
that series at the time outstanding may on behalf of the Holders of all the
Securities of that series waive any past default or Event of Default described
in clause
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(a), (b), (c) or (g) of Section 7.01 (or, in the case of an event specified in
clause (d), (e) or (f) of Section 7.01, the Holders of an aggregate principal
amount of all the Securities then outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Securities")) may waive such default or Event of Default as its
consequences except (1) a default in the payment of interest, if any, or
premium, if any, on, or the principal of, any of the Securities or in the
payment of any sinking fund installment or analogous obligation with respect to
Securities or (2) in respect of a covenant or provision hereof which under
Article Eleven cannot be modified or amended without the consent of the Holder
of each Security outstanding of the series affected. Upon any such waiver the
Company, the Trustee and the Holders of Securities of that series (or all of the
Securities, as the case may be) shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.07, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of any default hereunder with respect to Securities of any
series, mail to all Holders of Securities of that series in the manner and to
the extent provided in Section 6.04(c) notice of such default known to the
Trustee, unless such default shall have been cured prior to the giving of such
notice; and provided that, except in the case of default in the payment of the
principal of or premium, if any, or interest, if any, on any of the Securities
of that series or in the making of any sinking fund payment or analogous
obligation with respect to Securities of that series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors or
trustees, 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 interests of the Holders of Securities of
such series; and provided, further. that in the case of any default of the
character specified in Section 7.01(d) with respect to Securities of such
series, no such notice to Holders of Securities of such series shall be given
until at least 90 days after the occurrence thereof. For the purpose of this
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Section, the term "default," with respect to 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 Securities of such series.
SECTION 7.09. Undertaking to Pay 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 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 7.09 shall not apply 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 at
Stated Maturity of the Securities outstanding of that series (or, in case of any
suit relating to or arising under clause (d), (e) or (f) of Section 7.01, 10% in
principal amount of all Securities outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Securities")) or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or interest,
if any, on any Security on or after the respective Stated Maturities expressed
in such Securities (or in the case of redemption or repayment on or after the
redemption date or repayment date).
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee. With respect to
the Holders of any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the Securities of that
series and after the curing of all Events of Default which may have occurred
with respect to the Securities of that series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations with respect to such series shall be read
<PAGE> 52
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into this Indenture against the Trustee. In case an Event of Default with
respect to the Securities of any series has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to that series 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 or her own affairs.
Prior to the occurrence of an Event of Default with respect to the
Securities of a series, and after the curing or waiving of all Events of Default
with respect to that series which may have occurred and in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any 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.
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
(a) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts,
and
(b) 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 pursuant to Section 7.07 of any series 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it has reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
<PAGE> 53
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SECTION 8.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 8.01
(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, consent, order, bond, debenture 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a written statement signed in the name
of the Company by the Chairman of the Board of Directors, the President, a Chief
Operating Officer, the Chief Corporate Officer, a Vice Chairman of the Board of
Directors, one of its Vice Presidents or its Treasurer (unless other evidence in
respect thereof is herein specifically prescribed); and any resolution of the
Board of Directors shall be sufficiently evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent,
order, approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount at Stated Maturity of the Securities then
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46
outstanding of any series affected or of all the Securities, as the case may be;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to so proceeding; 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.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any of
the Securities or coupons; provided that the Trustee shall not be relieved of
its duty to authenticate Securities as authorized by this Indenture. The Trustee
shall not be accountable for the use or application by the Company of any
Securities or the proceeds of any Securities authenticated and delivered by the
Trustee in conformity with the provisions of this Indenture.
SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities. The
Trustee or any paying agent or Security registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities or the coupons appertaining thereto with the same
rights it would have if it were not Trustee, paying agent or Security registrar.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions of
Section 13.04, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the
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Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses. disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim of liability arising in connection with its
duties under this Indenture. The obligations of the Company under this Section
8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate. in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 8.08, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign in the manner and with the
effect specified in Section 8.10.
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(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10
days after the expiration of such 90 day period, transmit notice of such failure
to all Holders of Securities, to the extent provided in Section 6.04(c).
(c) For the purposes of this Section 8.08, the Trustee shall be deemed
to have a conflicting interest with respect to Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
outstanding securities of any series other than that series or is trustee under
another indenture under which any other securities, or certificates of interest
or participation in any other securities, of the Company are outstanding unless
such other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture; provided that
there shall be excluded from the operation of this paragraph (A)(i) the
Indenture dated December 15, 1963, by and between Sinclair Oil Corporation, to
which the Company is successor by merger, and the Trustee, under which the
Company's 4.60% Sinking Fund Debentures Due 1988 are outstanding; (ii) the
Indenture dated as of December 1, 1968, by and between The Anaconda Company, to
which the Company is successor by merger, and the Trustee, pursuant to which the
Company's 6 5/8% Debentures Due 1993 are outstanding; (iii) the Indenture dated
as of December 15, 1970, by and between the Company and the Trustee, pursuant to
which the Company's 7.70% Debentures Due 2000 are outstanding; (iv) the
Indenture dated as of January 15, 1975, by and among ARCO Pipe Line Company and
the Company, as Guarantor, and the Trustee, under which ARCO Pipe Line Company's
7 3/4% Guaranteed Notes Due 1986 are outstanding; and (v) the Indenture dated
as of May 1, 1980, by and between the Company and the Trustee, under which the
Company's 11.375% Debentures Due 2010 are outstanding; and (B) this Indenture
with respect to the Securities of any series other than that series or any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding if
(i) this Indenture and such other indenture or indentures are wholly unsecured
and such other indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and Exchange Commission shall have
found and declared by order pursuant to subsection (b) of section 305 or
subsection (c) of section 307 of the Trust Indenture Act of 1939 that
differences exist
<PAGE> 57
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between the provisions of this Indenture and the provisions of such other
indenture or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this Indenture
with respect to Securities of that series and any such other series and such
other indentures, or (ii) the Company shall have sustained the burden of
proving, on application to the Securities and Exchange Commission and after
opportunity for hearing thereon, that the trusteeship under this Indenture with
respect to Securities of that series and such other series and such other
indenture is not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with respect to
Securities of that series or such other series or such indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities of any series issued under this Indenture or an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with the
Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (A) one
individual may be a director or an executive officer of the Trustee and a
director or an executive officer of the Company, but may not be at the same time
an executive officer of both the Trustee and the Company; (B) if and so long as
the number of directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer of the Trustee
and a director of the Company; and (C) the Trustee may be designated by the
Company or by an underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner, or executive
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officer thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (A) 5% or more of the voting
securities, or 10% or more of any other class of security, of the Company, not
including the Securities issued under this Indenture and securities issued under
any other indenture under which the Trustee is also trustee, or (B) 10% or more
of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or more
of the voting securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition to the extent
that such securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after May 15, in each
calendar year, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such May 15. If the Company fails
to make payment in full of principal of or interest
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on any of the Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above mentioned capacities as
of the date of the expiration of such 30-day period and, after such date,
notwithstanding the foregoing provisions of this paragraph (9), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c).
The specifications of percentages in paragraphs (5) to (9), inclusive, of
this subsection (c) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c)
only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph hereof, the words
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
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security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security" or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to the Company shall
mean every person who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or any
individual performing similar functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the Securities.
(6) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the treasurer of
a
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corporation, and any individual customarily performing similar functions with
respect to any organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
The percentages of voting securities and other securities specified in this
Section 8.08 shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section 8.08 (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a person means such
percentage of the aggregate amount of securities of the class outstanding.
(C) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of shares
if relating to capital shares, and the number of units if relating to any other
kind of security.
(D) The term "outstanding" means issued and not held by or for the account
of the issuer. The following securities shall not be deemed outstanding within
the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to securities
of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to another
class of securities of the issuer, if the obligation evidenced by such other
class of securities is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(iv) securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(E) A security shall be deemed to be of the same class as another security
if both securities confer upon the holder or holders thereof
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substantially the same rights and privileges; provided, however, that in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes, and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each
series of Securities hereunder shall at all times be a corporation organized and
doing business under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority and having its principal office
and place of business in The City of New York, if there be such a corporation
having its principal office and place of business in said City. If such
corporation publishes reports of condition at least annually, pursuant to law or
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 8.09, 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. In case at any time the
Trustee with respect to each series of Securities shall cease to be eligible in
accordance with the provisions of this Section 8.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may resign
with respect to any series of Securities at any time by giving written notice of
such resignation to the Company and by giving notice thereof to the Holders of
the applicable series of Securities in manner and to the extent provided in
Section 6.04(c). Upon receiving such notice of resignation with respect to the
applicable series of Securities, the Company shall promptly appoint a successor
trustee with respect to that series by written instrument, in duplicate,
executed by or pursuant to order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If a successor trustee shall not have been so appointed with
respect to any series of
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Securities, and shall have accepted appointment within 30 days after the giving
of such notice of resignation to the Holders of such series, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Holder who has been a bona fide holder of a Security
or Securities of the applicable series for at least six months may, subject to
the provisions of Section 7.09, on behalf of such Holder and all others
similarly situated, petition any such court for the appointment of a successor
trustee with respect to that series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur-
(1) the Trustee shall fail to comply with the provisions of subsection (a)
of Section 8.08 after written request therefor by the Company or by any Holder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, with respect to any
series of Securities 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, the Company may remove the Trustee with respect to any
one or more of such series of Securities and appoint a successor trustee of that
series by written instrument, in duplicate, executed by or pursuant to order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or subject to the
provisions of Section 7.09, any Holder has been a bona fide Holder of a Security
or Securities of that series for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to that series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee with respect to that series.
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(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any time
remove the Trustee with respect to such series and nominate with respect to such
series a successor trustee which shall be deemed appointed as successor trustee
with respect to such series unless within 10 days after such nomination the
Company objects thereto, in which case the Trustee so removed or any Holder of
Securities of the series may petition any court of competent jurisdiction for
appointment of a successor trustee with respect to such series upon the terms
and conditions and otherwise as provided in subsection (a) of this Section 8.10.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee with respect to an applicable series of Securities pursuant to
any of the provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee for that series as provided
in Section 8.11.
(e) The Company shall give notice as provided in Section 15.05 of each
resignation or removal of the Trustee with respect to any series of Securities.
Each notice shall include the name of such successor trustee and the address of
its Principal Office and shall be given within 60 days of such event.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 8.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers and trusts with respect to any
series of Securities of the trustee so ceasing to act. Upon request of any
successor trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and
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confirm to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 8.06.
In case of the appointment hereunder of a successor trustee with respect to
the Securities of any one or more (but not all) series, the Company, the
predecessor trustee and each successor trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which shall
contain (1) such provisions as shall be necessary or desirable to transfer and
confirm to, and vest in each successor trustee all of the rights, powers and
duties of the predecessor 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, it shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor trustee with
respect to the Securities of any series as to which the predecessor trustee is
not retiring shall continue to be vested in the predecessor 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.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the provisions
of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, the Company shall mail notice of the succession of such trustee
hereunder to all the Registered Holders of such series as the names and
addresses of such Holders shall appear on the registry books of the Company and
shall publish notice of such event once in an Authorized Newspaper in the Place
of Payment. If the Company fails to mail such notice in the prescribed manner
within 10 days after the acceptance of
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appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 8.12. Succession by Merger, etc. 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 the business of the
Trustee, shall be the successor of the Trustee hereunder provided such
corporation shall be qualified under the provisions of Section 8.08 and eligible
under the provisions of Section 8.09 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Securities of any series so authenticated; and in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities of any series either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities of any series or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor trustee or authenticate
Securities of any series in the name of any predecessor trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to
the provision of subsection (b) of this Section 8.13, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities of any series within four
months prior to a default, as defined in subsection (c) of this Section 8.13, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in special account for the benefit
of the Trustee individually, the Holders of the Securities of any series, and
the holders of other indenture securities (as defined in paragraph (2) of
subsection (c) of this Section 8.13)
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(1) an amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest, effected
after the beginning of such four-month period and valid as against the Company
and its other creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such four-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such
claim by any person (other than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Federal or State bankruptcy laws or
other similar laws;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the beginning
of such four-month period;
(C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any such
claim, if such claim was created after the beginning of such four-month period
and such property was received as security therefor simultaneously with the
creation thereof, and if the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section 8.13, would
occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as
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provided in such paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of Securities of a series as to which such Trustee is
acting as Trustee hereunder and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal or
State bankruptcy laws or other similar laws, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal or State bankruptcy laws or other
similar laws, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal or State bankruptcy laws or other similar laws, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Holders and the
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holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four-month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have given
rise to the obligation to account, if such Trustee had continued as trustee,
occurred after the beginning of such four-month period; and
(ii) such receipt of property or reduction of claim occurred within four
months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture,
or any security or securities having a maturity of one year or more at the time
of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction, or by this Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making thereof is given to
the Holders at the time and in the manner provided in Section 6.04 with respect
to reports pursuant to subsections (a) and (b) thereof, respectively;
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(3) disbursements made in the ordinary course of business in the capacity
of trustee under an indenture, transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of this
Section 8.13.
(c) For the purposes of this Section 8.13:
(1) The term "default" shall mean any failure to make payment in full of
the principal of or interest upon one of the Securities of any series or upon
the other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" shall mean securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) of this Section 8.13, and (C) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand.
(4) The term "self-liquidating, paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to,
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possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security; provided that the security is received by
the Trustee simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. (a) Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount at Stated Maturity of the Securities of any or all series may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (A) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (B) by the record of the Holders of Securities voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article Ten, or (C) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
(b) If the Company shall solicit from the Holders of any or all series any
request, demand, authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by or pursuant to resolution of the Board of
Directors fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other act may be given before or after the record date, but
only the Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities
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have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
Securities deemed to be outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
SECTION 9.02. Proof of Execution by Holders. Subject to the provisions of
Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a
Holder, his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities of
any series shall be proved by the registry books of the Company or by a
certificate of the registrar of the Securities of any series.
The record of any meeting of Holders of Securities may be proved in the
manner provided in Section 10.06.
SECTION 9.03. Who Deemed Absolute Owners. The Company, the Trustee, any
paying agent, any transfer agent and any Security registrar may treat the Holder
of any Unregistered Security and the Holder of any coupon, except with respect
to a Fully Registered Security, whether or not the Security to which it
appertained be registered, 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 (whether or not such Security or coupon shall be overdue) and neither
the Company, the Trustee, any paying agent, any transfer agent nor any Security
registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security registrar may
treat the person in whose name a Registered Security shall be registered upon
the registry books of the Company as the absolute owner of such Security
(whether or not such Security shall be overdue) for the purpose of receiving
payment of principal of, premium, if any, on and, if such Registered Security is
a Fully Registered Security, interest, if any, on, such Registered Security and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any transfer agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his order shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
such Security.
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The amount of Unregistered Securities held by any Person executing any
instrument or writing as a Holder, and the numbers of such Unregistered
Securities, and the date of his holding the same, may be proved by the
production of such Securities or by a certificate executed by any trust company,
bank, banker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Holder, if such certificate or
affidavit is in form satisfactory to the Trustee. The Trustee and the Company
may assume that such ownership of any Unregistered Security continues until (i)
another certificate bearing a later date issued in respect of the same
Unregistered Security is produced, or (ii) such Unregistered Security is
produced by some other Person, or (iii) such Unregistered Security is registered
as to principal or is surrendered in exchange for a Fully Registered Security,
or (iv) such Unregistered Security has been cancelled in accordance with Section
2.08.
SECTION 9.04. Company-Owned Securities Disregarded. In determining whether
the Holders of the requisite aggregate principal amount at Stated Maturity of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on
such Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction or consent only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 9.04 if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 9.05. Revocation of Consents; Future Holders Bound. (a) At any time
prior to but not after, the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount at Stated Maturity of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such action, any
Holder of a Security the number, letter or other distinguishing symbol of which
is shown by the evidence to be included in the Securities the Holders of which
have consented to such action may, by filing written notice with the Trustee at
the Principal Office of the Trustee and upon proof of holding as provided in
Section 9.02, revoke such action so far as concerns such Holder and all future
Holders and owners of such Security and any Securities which may be issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Security or such other Security issued in
exchange or substitution therefor.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action by 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
any action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities
of any or all series may be called at any time and from time to time pursuant to
the provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Eight;
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(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount at Stated Maturity of the
Securities of any or all series, as the case may be, under any other provisions
of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 10.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities of any or all 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 mailed to Holders of
Registered Securities of each series affected, at their addresses as they appear
on the registry books of the Company, and notice to Holders of Unregistered
Securities of each series affected shall be published in an Authorized Newspaper
in the Place of Payment. Such notice shall be mailed or published, as the case
may be, not less than 20 nor more than 90 days prior to the date fixed for the
meeting. However, if all Securities of any series with respect to which the
meeting is to be held are Registered Securities no notice need be given except
notice by mail as hereinabove provided.
Failure to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders
of Securities of any or all series, as the case may be, shall be valid without
notice if the Holders of all such Securities outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at any time
the Company, pursuant to a resolution of its Board of Directors, or the Holders
of at least 10% in aggregate principal amount at Stated Maturity of the
Securities then outstanding of any or all series, as the case may be, that may
be affected by the action proposed to be taken at the meeting, shall have
requested the Trustee to call a meeting of Holders of Securities of any or all
series, as the case may be, that may be so affected by written request setting
forth in a reasonable detail the action proposed to be taken at the
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meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Holders, in the
amount specified, may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 10.01, by mailing notice thereof as provided in Section
10.02.
SECTION 10.04. Qualification for Voting. To be entitled to vote at any
meeting of Holders of Securities, a Person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by such a Holder. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any or all series, as the case may be, shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem fit.
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 10.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount at Stated Maturity of the Securities represented at the
meeting.
Subject to the provisions of Section 9.04, at any meeting each Holder of
Securities with respect to which such meeting is being held, or proxy therefor,
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Securities") of such Securities
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held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any such 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 other than as a Holder of
Securities or proxy therefor. At any meeting of Holders of Securities, the
presence of Persons holding or representing the Securities with respect to which
such meeting is being held in such aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall constitute a quorum, but, if less than a quorum is present, the Persons
holding or representing a majority in such aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present. Any
meeting of Holders of Securities with respect to which such meeting is being
held duly called pursuant to the provisions of Section 10.02 or 10.03 may be
adjourned from time to time by vote of the Holders of a majority in such
aggregate principal amount of the Securities represented at the meeting and
entitled to vote, and the meeting may be held as so adjourned without further
notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be inscribed the signatures of
the Holders or of their representatives by proxy and the serial number or
numbers of the Securities 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 in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said 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 said notice was mailed as provided in Section 10.02. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by
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the Trustee. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this Article Ten
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders of Securities or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
of Securities under any of the provisions of this Indenture or of the
Securities.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indentures without Consent of Holders. Without
the consent of any Holders of any series of Securities, the Company, when
authorized by or pursuant to a resolution of the Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation,
pursuant to Article Twelve hereof, of the covenants, agreements and obligations
of the Company herein and in the Securities contained;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of any series of
Securities as the Board of Directors and the Trustee shall consider to be for
the protection of the Holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default
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or may limit the remedies available to the Trustee upon such default and shall
not adversely affect the interests of the Holders of Securities of any series;
(c) to convey. transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of any series, any property or assets which the
Company may desire or may be required to convey, transfer, assign, mortgage or
pledge in accordance with the provisions of Section 5.03 or Section 12.02;
(d) to establish the form or terms of Securities of any series as permitted
by Section 2.01;
(e) to cure any ambiguity, to correct or supplement any provision contained
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision contained herein or in any supplemental indenture, or
to make such other provisions in regard to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, however, such action shall not adversely affect the
interests of the Holders of Securities of any series; or
(f) 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 8.11; or
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 11.02.
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SECTION 11.02. Supplemental Indentures with Consent of Holders of a Series.
With the consent (evidenced as provided in Section 9.01) of the Holders of not
less than 50% in aggregate principal amount at Stated Maturity of the Securities
at the time outstanding of each series affected by such supplemental indenture
or indentures, the Company, when authorized by or pursuant to a resolution of
the Board of Directors, and the Trustee may from time to time and at any time
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 any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series under
this Indenture; provided, however, that no such supplemental indenture shall
without the consent of the Holder of each outstanding Security affected thereby
(i) extend the fixed maturity of any Security, or reduce the rate of interest or
extend the time of payment of interest, if any, thereon or reduce the principal
thereof or the time during which premium is payable on or make the principal
thereof or any premium or any interest thereon payable in any coin or currency
other than that provided in such Securities, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 7.01 or the
amount thereof provable in bankruptcy pursuant to Section 7.02 without the
consent of the Holder of each Security so affected, or (ii) reduce the
percentage in principal amount at Stated Maturity of the 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 hereof or of certain defaults hereunder and their
consequences provided for in this Indenture. A supplemental indenture which
changes or eliminates any covenant or other provision of this indenture which
has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of such
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series as aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eleven shall comply with the Trust Indenture Act of 1939, as then
in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Holders of the series of Securities affected
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 11.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
8.02, shall be entitled to receive and shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel as conclusive
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evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Eleven.
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 12.02, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent any
sale or conveyance of all or substantially all the property of the Company, to
any other corporation (whether or not affiliated with the Company) authorized to
acquire and operate the same; provided, however, and the Company hereby
covenants and agrees, that upon any such consolidation, merger, sale or
conveyance, other than a consolidation or merger in which the Company is the
continuing corporation, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture and in such series to be performed by
the Company, shall be expressly assumed, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee by the corporation
(if other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property.
SECTION 12.02. Securities to be Secured in Certain Events. If, upon any
consolidation or merger of the Company with or into any other corporation, or
upon any sale or conveyance of all or substantially all the property of the
Company to any other corporation, any of the property of the Company or of any
Restricted Subsidiary would thereupon become subject to any mortgage, lien or
pledge, the Company, prior to or simultaneously with such consolidation, merger,
sale or conveyance, will secure the Securities of each series outstanding
hereunder, equally and ratably with any other obligations of the Company or any
Restricted Subsidiary then entitled thereto, by a
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direct lien on all such property prior to all liens other than any theretofore
existing thereon.
SECTION 12.03. Successor Corporation to be Substituted. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest, if any, on all of the
Securities of each series and the due and punctual performance of all of the
covenants and conditions of this Indenture and in such series to be performed by
the Company, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein and, if the
Company is to be voluntarily dissolved, the Company shall thereupon be released
from all obligations hereunder and under the Securities of each series. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of Atlantic Richfield Company any or all of the
Securities of each series issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the other Securities of such series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
SECTION 12.04. Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 8.01 and 8.02, shall be entitled to receive and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article.
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ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities of any series not theretofore cancelled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds (other than funds repaid by the Trustee to the Company
in accordance with Section 13.04) sufficient to pay at maturity or upon
redemption all of the Securities of such series (other than any Securities of
such series which shall have been mutilated, destroyed, lost or stolen and in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered or which shall have been paid) not theretofore
cancelled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest, if any, due or to become due to such date of
maturity or redemption date, as the case may be, and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect with
respect to Securities of such series, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 15.07 and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture with
respect to Securities of such series, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services reasonably and
properly rendered by the Trustee in connection with this Indenture or the
Securities.
SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee. All moneys
deposited with the Trustee pursuant to Section 13.01 shall be held in trust and
applied by it to the payment, either directly or through any paying
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agent (including the Company if acting as its own paying agent), to the Holders
of the particular Securities for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest and premium, if any.
SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture, all moneys then held by any paying agent of the
Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of (and premium, if any) or
interest, if any, on Securities of any series and not applied but remaining
unclaimed by the Holders of Securities of that series for three years after the
date upon which the principal of, and premium, if any, or interest, if any, on
such Securities, as the case may be, shall have become due and payable, shall,
upon written demand, be repaid to the Company by the Trustee; and the Holder of
any of such Securities shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect, provided, however, that, before
being required to make any such repayment, the Trustee may (at the cost of the
Company) mail to such Holders at their last known address or cause to be
published once a week for two successive weeks, in each case on any day of the
week, in an Authorized Newspaper in the Place of Payment, a notice (in such form
as may be deemed appropriate by the Trustee) that said moneys remain unclaimed
and that, after a date named therein, any unclaimed balance of said moneys then
remaining will be returned to the Company (except that with respect to
presentation of Securities for payment and transfer, such term shall mean the
office or agency of the Trustee in said city at which at any particular time its
corporate agency business shall be conducted).
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or
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interest, if any, on any Security, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders.
Nothing in this Indenture or in the Securities, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and assigns and the Holders, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; and, subject to the
provisions of Articles Nine and Fourteen, all of such covenants, conditions and
provisions shall be for the sole benefit of the parties hereto and the Holders.
SECTION 15.03. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 15.04. Addresses for Notices, etc. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
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served by the Trustee or by the Holders of Securities on the Company shall be
deemed to have been sufficiently given or served, for all purposes, if given or
served at the office of the Treasurer at the principal office of the Company at
515 South Flower Street, Los Angeles, California 90071 (until another address is
filed by the Company with the Trustee). Any notice, direction, request of demand
by any Holder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Principal
Office of the Trustee, addressed to the attention of its Corporate Trust
Division.
SECTION 15.05 Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, (1) if any of the
Securities affected by such event are Registered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class, postage prepaid, to each
Registered Holder of such Securities, at his address as it appears on the
registry books of the Company, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice and (2) if any
of the Securities affected by such event are Unregistered Securities, such
notice shall be sufficiently given (unless otherwise herein or in such
Securities expressly provided) if published once in an Authorized Newspaper in
the Place of Payment not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in one or more Authorized Newspapers as required by
any Security or this Indenture, then such method of publication or notification
as shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
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In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to the Holders of Securities when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee and the Company shall be deemed
to be a sufficient giving of such notice.
SECTION 15.06. New York Contract. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 15.07. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 15.08. Legal Holidays. In any case where the date of maturity of
interest on or principal of the Securities or the date fixed for redemption of
any Security will be a day on which banking institutions are authorized or
obligated by law to close in The City of New York, New York, then payment of
such interest and premium, if any, on or principal of the Securities need not be
made on such date but may be made on the next
<PAGE> 89
81
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption and no interest shall accrue for the period
from and after such date.
SECTION 15.09. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
SECTION 15.10. No Security Interest Created. Nothing in this Indenture or
in the Securities, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction where property of
the Company or its Subsidiaries is located.
SECTION 15.11. Table of Contents, Headings, etc. The table of contents and
the titles and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.12. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.13. Acceptance of Trust. The Trustee hereby accepts the trusts
declared and provided in this Indenture, upon the terms and conditions herein
above set forth.
<PAGE> 90
82
IN WITNESS WHEREOF, ATLANTIC RICHFIELD COMPANY has caused this Indenture to
be signed and acknowledged by its Chairman of the Board, its President, any Vice
Chairman, any Chief Operating Officer, its Chief Corporate Officer, its Senior
Vice President and Chief Financial Officer or its Vice President and Treasurer,
and its corporate seal to be affixed hereunto, and the same to be attested by
its Secretary or an Assistant Secretary, and THE CHASE MANHATTAN BANK, N.A. has
caused this Indenture to be signed and acknowledged by one of its Vice
Presidents or Second Vice Presidents, has caused its corporate seal to be
affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, as of the day and year first written above.
ATLANTIC RICHFIELD COMPANY
(SEAL) By /s/ CAMRON COOPER
-------------------------------------
Vice President and Treasurer
Attest:
/s/ WILLIAM W. FULMER
- -------------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
(SEAL) By /s/ F.E. DAVIS, JR.
-------------------------------------
Second Vice President
Attest
/s/ T.A. LACEY
- -------------------------------
Assistant Secretary
<PAGE> 91
83
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 4th day of June, 1985, before me personally came CAMRON COOPER, to
me known, who, being by me duly sworn, did depose and say that she resides at
Pasadena, California; that she is Vice President and Treasurer of Atlantic
Richfield Company, one of the corporations described in and which executed the
above instrument; that she knows the corporate seal of said corporation; that
the seal affixed to said instrument is said corporate seal; that it was so
affixed by the authority of the Board of Directors of said corporation; and that
she signed her name thereto by like authority.
/s/ BARBARA M. HINDS
-------------------------------------
[Notary Public]
(Seal)
OFFICIAL SEAL
BARBARA M. HINDS
NOTARY PUBLIC - CALIFORNIA
LOS ANGELES COUNTY
MY COMMISSION EXPIRES JUL 20, 1988
<PAGE> 92
84
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of June, 1985, before me personally came F.E. Davis, Jr.,
to me known, who, being by me duly sworn, did depose and say that he resides at
816 3rd Pl., Plainfield, N.J., that he is a Second Vice President of The Chase
Manhattan Bank, N.A., one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the 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.
/s/ DELLA K. BENJAMIN
-------------------------------------
[Notary Public]
(Seal)
DELLA K. BENJAMIN
NOTARY PUBLIC, STATE OF NEW YORK
NO. 24-4659667
QUALIFIED IN KINGS COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES MARCH 30, 1987
<PAGE> 1
Exhibit 4.3
================================================================================
ATLANTIC RICHFIELD COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
---------------------------
INDENTURE
Dated as of January 1, 1992
---------------------------
================================================================================
<PAGE> 2
TIE-SHEET
OF PROVISIONS OF TRUST INDENTURE ACT OF 1939 WITH INDENTURE DATED AS OF JANUARY
1, 1992, BETWEEN ATLANTIC RICHFIELD COMPANY AND THE BANK OF NEW YORK, TRUSTEE:
<TABLE>
<CAPTION>
Section of Act Section of Indenture
- -------------- --------------------
<S> <C>
310(a)(1) and (2)...................................8.09
310(a)(3) and (4)...................................Not applicable
310(b)..............................................8.08 and 8.10(b)
310(c)..............................................Not applicable
311(a) and (b)......................................8.13
311(c)..............................................Not applicable
312(a)..............................................6.01 and 6.02(a)
312(b) and (c)......................................6.02(b) and (c)
313(a)..............................................6.04(a)
313(b)(1)...........................................Not applicable
313(b)(2)...........................................6.04(b)
313(c)..............................................6.04(c)
313(d)..............................................6.04(d)
314(a)..............................................6.03
314(b)..............................................Not applicable
314(c)(1) and (2)...................................15.07
314(c)(3)...........................................Not applicable
314(d)..............................................Not applicable
314(e)..............................................15.07
315(a), (c) and (d).................................8.01
315(b)..............................................7.08
315(e)..............................................7.09
316(a)(1)...........................................7.01 and 7.07
316(a)(2)...........................................Omitted
316(a) last sentence................................9.04
316(b)..............................................7.04
317(a)..............................................7.02
317(b)..............................................5.07
318(a)..............................................15.09
</TABLE>
- ----------
This tie-sheet is not part of the Indenture as executed.
<PAGE> 3
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES..........................................................1
RECITALS.........................................................1
</TABLE>
ARTICLE ONE.
DEFINITIONS.
<TABLE>
<S> <C>
SECTION 1.01. Definitions........................................1
Authorized Newspaper...............................1
Board of Directors.................................2
Business Day.......................................2
Company............................................2
Consolidated Net Tangible Assets...................2
Coupon Security....................................2
Event of Default...................................3
Fully Registered Security..........................3
Holder.............................................3
Indenture..........................................3
Interest...........................................3
Officers' Certificate..............................4
Opinion of Counsel.................................4
Original Issue Date................................4
Original Issue Discount Security...................4
Person.............................................4
Place of Payment...................................5
Principal Office of the Trustee....................5
Registered Coupon Security.........................5
Registered Holder..................................5
Registered Security................................5
</TABLE>
<PAGE> 4
ii
<TABLE>
<CAPTION>
<S> <C>
PAGE
----
<S> <C>
Responsible Officer................................5
Restricted Property................................5
Restricted Subsidiary..............................6
Security or Securities Outstanding.................6
Stated Maturity....................................7
Subsidiary.........................................7
Trustee............................................8
Trust Indenture Act of 1939........................8
Unregistered Security..............................8
</TABLE>
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
<TABLE>
<S> <C>
SECTION 2.01. Amount Unlimited; Issuable in Series...............8
SECTION 2.02. Form of Securities and of Trustee's Certificate
of Authentication.................................10
SECTION 2.03. Denomination, Authentication and Dating of
Securities......................................11
SECTION 2.04. Execution of Securities...........................12
SECTION 2.05. Registration, Registration of Transfer and
Exchange........................................13
SECTION 2.06. Mutilated, Destroyed. Lost or Stolen Securities...15
SECTION 2.07. Temporary Securities..............................16
SECTION 2.08. Cancellation of Securities Paid, etc..............17
</TABLE>
ARTICLE THREE.
REDEMPTION OF SECURITIES.
<TABLE>
<S> <C>
SECTION 3.01. Applicability of Article..........................17
SECTION 3.02. Notice of Redemption; Selection of Securities.....18
SECTION 3.03. Payment of Securities Called for Redemption.......19
</TABLE>
<PAGE> 5
iii
ARTICLE FOUR.
SINKING FUNDS.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 4.01. Applicability of Article..........................20
SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments
with Securities.................................20
SECTION 4.03. Redemption of Securities for Sinking Fund.........20
</TABLE>
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
<TABLE>
<S> <C>
SECTION 5.01. Payment of Principal, Premium and Interest........22
SECTION 5.02. Offices for Notices and Payments, etc.............22
SECTION 5.03. Limitation on Liens...............................23
SECTION 5.04. Limitation on Sale and Lease-Back.................25
SECTION 5.05. Definition of "Value".............................26
SECTION 5.06. Appointments to Fill Vacancies in Trustee's
Office..........................................26
SECTION 5.07. Provision as to Paying Agent......................26
SECTION 5.08. Certificate to Trustee............................28
</TABLE>
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
<TABLE>
<S> <C>
SECTION 6.01. Holders Lists.....................................28
SECTION 6.02. Preservation and Disclosure of Lists..............29
SECTION 6.03. Reports by the Company............................30
SECTION 6.04. Reports by the Trustee............................31
</TABLE>
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
<TABLE>
<S> <C>
SECTION 7.01. Events of Default.................................33
SECTION 7.02. Payment of Securities on Default; Suit Therefor...36
SECTION 7.03. Application of Moneys Collected by Trustee........38
SECTION 7.04. Proceedings by Holders............................39
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 7.05. Proceedings by Trustee............................40
SECTION 7.06. Remedies Cumulative and Continuing................41
SECTION 7.07. Direction of Proceedings and Waiver of Defaults
by Majority of Holders..........................41
SECTION 7.08. Notice of Defaults................................42
SECTION 7.09. Undertaking to Pay Costs..........................43
</TABLE>
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
<TABLE>
<S> <C>
SECTION 8.01. Duties and Responsibilities of Trustee............43
SECTION 8.02. Reliance on Documents, Opinions, etc..............45
SECTION 8.03. No Responsibility for Recitals, etc...............46
SECTION 8.04. Trustee, Paying Agent or Registrar May Own
Securities......................................46
SECTION 8.05. Moneys to be Held in Trust........................46
SECTION 8.06. Compensation and Expenses of Trustee..............46
SECTION 8.07. Officers' Certificate as Evidence.................47
SECTION 8.08. Conflicting Interest of Trustee...................47
SECTION 8.09. Eligibility of Trustee............................54
SECTION 8.10. Resignation or Removal of Trustee.................54
SECTION 8.11. Acceptance by Successor Trustee...................56
SECTION 8.12. Succession by Merger, etc.........................58
SECTION 8.13. Limitation on Rights of Trustee as a Creditor.....58
</TABLE>
ARTICLE NINE.
CONCERNING THE HOLDERS.
<TABLE>
<S> <C>
SECTION 9.01. Action By Holders.................................63
SECTION 9.02. Proof of Execution by Holders.....................64
SECTION 9.03. Who Deemed Absolute Owners........................64
SECTION 9.04. Company-Owned Securities Disregarded..............65
SECTION 9.05. Revocation of Consents; Future Holders Bound......66
</TABLE>
<PAGE> 7
v
ARTICLE TEN.
HOLDERS' MEETINGS.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 10.01. Purposes of Meetings.............................66
SECTION 10.02. Call of Meetings by Trustee......................67
SECTION 10.03. Call of Meetings by Company or Holders...........67
SECTION 10.04. Qualification for Voting.........................68
SECTION 10.05. Regulations......................................68
SECTION 10.06. Voting...........................................69
SECTION 10.07. No Delay of Rights by Meeting....................70
</TABLE>
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
<TABLE>
<S> <C>
SECTION 11.01. Supplemental Indentures without Consent of
Holders........................................70
SECTION 11.02. Supplemental Indentures with Consent of Holders..72
SECTION 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures........................73
SECTION 11.04. Notation on Securities...........................73
SECTION 11.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee..............73
</TABLE>
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
<TABLE>
<S> <C>
SECTION 12.01. Company May Consolidate, etc., on Certain Terms..74
SECTION 12.02. Securities to be Secured in Certain Events.......74
SECTION 12.03. Successor Corporation to be Substituted..........75
SECTION 12.04. Opinion of Counsel to be Given Trustee...........75
</TABLE>
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
<TABLE>
<S> <C>
SECTION 13.01. Discharge of Indenture...........................76
SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee..76
SECTION 13.03. Paying Agent to Repay Moneys Held................77
SECTION 13.04. Return of Unclaimed Moneys.......................77
</TABLE>
<PAGE> 8
vi
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations....................................77
</TABLE>
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
<TABLE>
<S> <C>
SECTION 15.01. Provisions Binding on Company's Successors.......78
SECTION 15.02. Benefits of Indenture Restricted to Parties
and Holders....................................78
SECTION 15.03. Official Acts by Successor Corporation...........78
SECTION 15.04. Addresses for Notices, etc.......................78
SECTION 15.05. Notices to Holders; Waiver.......................79
SECTION 15.06. New York Contract................................80
SECTION 15.07. Evidence of Compliance with Conditions
Precedent......................................80
SECTION 15.08. Legal Holidays...................................80
SECTION 15.09. Trust Indenture Act to Control...................81
SECTION 15.10. No Security Interest Created.....................81
SECTION 15.11. Table of Contents, Headings, etc.................81
SECTION 15.12. Execution in Counterparts........................81
SECTION 15.13. Acceptance of Trust..............................81
</TABLE>
<PAGE> 9
1
INDENTURE, dated as of January 1, 1992, between ATLANTIC RICHFIELD
COMPANY, a corporation duly organized and existing under the laws of the State
of Delaware (the "Company"), and THE BANK OF NEW YORK, a New York corporation
authorized to do a banking business (the "Trustee").
RECITAL 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 to be issued in one or more
series (the "Securities"), as provided herein.
AGREEMENT
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this Indenture.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper of general
circulation printed in the English language and customarily published on
<PAGE> 10
2
each Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are
authorized hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board duly authorized to act for such Board.
Business Day:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions in The
City of New York.
Company:
The term "Company" shall mean Atlantic Richfield Company, a Delaware
corporation, and subject to the provisions of Article Twelve shall include its
successors and assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the total amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed), and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as set forth on
the most recent balance sheet of the Company and its consolidated Subsidiaries
and computed in accordance with generally accepted accounting principles.
Coupon Security:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more interest coupons appertaining thereto.
<PAGE> 11
3
Event of Default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time. if any, and after the giving of the
notice, if any, therein designated.
Fully Registered Security:
The term "Fully Registered Security" shall mean any Security registered
as to principal and interest, if any.
Holder:
The term "Holder," "Holder of Securities," or other similar terms, when
used with respect to any Security shall mean a bearer of an Unregistered
Security or a Registered Holder of a Registered Security and when used with
respect to any coupon, means the bearer thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the form and terms of particular series of
Securities established as contemplated hereunder, provided, however, that if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean with respect to any one or more series of Securities for
which such Person is Trustee, 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 2.01, exclusive, however, of any provisions or terms
which relate solely to one or more series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
Interest:
The term "interest" when used with respect to any series of non-interest
bearing Securities, shall mean interest payable after maturity.
<PAGE> 12
4
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board of Directors, the President, a Chief Operating Officer, or
one of its Vice Presidents and by its Treasurer, one of its Assistant
Treasurers, the Secretary, an Assistant Secretary, the Controller or an
Assistant Controller of the Company. If applicable, each certificate shall
include the statements provided for in Section 15.07 if and to the extent
required by the provisions of such Section. Such certificate shall also mean a
certificate of one of the above officers approving the form, terms and
conditions of Securities of a particular series pursuant to Section 2.01.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of, or of counsel to the Company, or may
be other counsel. Each such opinion shall include the statements provided for in
Section 15.07 if, and to the extent, required by the provisions of such Section.
Original Issue Date:
The term "original issue date" of any Security (or portion thereof)
shall mean the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean 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 7.01.
Person:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
<PAGE> 13
5
Place of Payment:
The term "Place of Payment" for a series of Securities shall mean the
Place or Places of Payment designated for each series pursuant to Section
2.01(5).
Principal Office of the Trustee:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, at which at any particular time its corporate
trust business shall be administered and which on the date hereof is at 101
Barclay Street, New York, New York 10286 (except that with respect to
presentation of Securities for payment and transfer, such term shall mean the
office or agency of the Trustee in said city at which at any particular time its
corporate agency business shall be conducted).
Registered Coupon Security:
The term "Registered Coupon Security" shall mean any Coupon Security
registered as to principal only.
Registered Holder:
The term "Registered Holder," when used with respect to a Registered
Security, shall mean the person in whose name such Security is registered on the
books of the Company kept for that purpose in accordance with the terms hereof.
Registered Security:
The term "Registered Security" shall mean any Security registered on the
books of the Company.
Responsible Officer:
The term "Responsible Officer" shall mean any officer to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
Restricted Property:
The term "Restricted Property" shall mean:
(a) any property interest owned by the Company or a Subsidiary in land
located in the continental United States of America (which for the
<PAGE> 14
6
purposes hereof shall include any property located off the coast of the
continental United States of America on which the Company or any Subsidiary
conducts operations pursuant to leases, rights or other authorizations from the
United States of America or any state thereof located within the continental
United States of America) and classified by such owner as productive of crude
oil, natural gas or other petroleum hydrocarbons in paying quantities;
(b) any refining plant or manufacturing plant owned by the Company or a
Subsidiary and located in the continental United States of America, except (1)
related facilities which in the opinion of the Board of Directors are
transportation or marketing facilities, and (2) a refining plant or
manufacturing plant which in the opinion of the Board of Directors is not a
principal plant of the Company and its Subsidiaries; and
(c) any shares of capital stock or indebtedness of a Restricted
Subsidiary.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary which owns
any Restricted Property, except a Subsidiary substantially all the physical
properties of which are located outside the continental United States of
America.
Security or Securities outstanding:
The terms "Security" or "Securities" shall have the meaning stated in
the recital of this Indenture and shall mean any Security or such Securities, as
the case may be, authenticated and delivered pursuant to this Indenture;
provided, however, that if at any time there is more than one Person acting as
Trustee under this instrument, "Securities" with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the recital and
shall more particularly mean Securities authenticated and delivered pursuant to
this instrument, exclusive of Securities of any series as to which such Person
is not Trustee.
The term "outstanding," when used with reference to Securities or
Securities of any series shall, subject to the provisions of Section 9.04, mean,
as of any particular time, all such Securities authenticated and delivered by
the Trustee pursuant to this Indenture, except:
<PAGE> 15
7
(a) such Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent), provided that if such Securities are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been mailed as
provided in Article Three, or provision satisfactory to the Trustee shall have
been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.06 except to the extent that a bona fide holder in due course of any such
Securities shall have presented proof satisfactory to the Trustee that such
holder is a bona fide holder in due course of any such Securities.
In determining whether the Holders of the requisite principal amount of
outstanding Securities of a series have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof determined in accordance with Section
7.01.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of
the outstanding securities of which having ordinary voting power to elect a
majority of the board of directors of such corporation (whether or not any other
class of securities has or might have voting power by reason of the
<PAGE> 16
8
happening of a contingency) is at the time owned or controlled directly or
indirectly by the Company or one or more Subsidiaries or by the Company and one
or more Subsidiaries.
Trustee:
The term "Trustee" shall mean The Bank of New York, until another or a
successor trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter shall mean and include each Person who is then
a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to the Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as it was in force at the date of execution of this Indenture,
except as provided in Section 11.03.
Unregistered Security:
The term "Unregistered Security" shall mean any Security or temporary
bearer Security not registered as to principal.
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series of
Securities shall be established (i) in an indenture supplemental hereto, (ii) in
a resolution of the Board of Directors or (iii) by the certificate of an officer
of the Company pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of all other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
<PAGE> 17
9
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.05, 2.06, 2.07, 3.03 or 11.04);
(3) the date or dates on which the principal and premium, if any, of the
Securities of the series are payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the formula by which interest shall be calculated, the
date or dates from which such interest shall accrue, the interest payment dates
on which such interest shall be payable and the record dates for the
determination of Holders thereof to whom interest is payable;
(5) the place or places where the principal of, and premium, if any, and
any interest on Securities of the series shall be payable (herein called the
"Place of Payment"); provided, however, that payment of principal, premium, if
any, and interest with respect to Registered Securities may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the registry books of the Company, as
defined in Section 2.05;
(6) the price or prices at which, the period or periods within 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, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount at Stated Maturity thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity
<PAGE> 18
10
thereof pursuant to Section 7.01 or provable in bankruptcy pursuant to
Section 7.02 or the method by which such portion of the principal amount
shall be determined;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(11) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(12) the securities will be issued in such form and such manner so that
the Company will not be prohibited from receiving a deduction for
interest paid thereon under Section 163(f) of the Internal Revenue Code
of 1954, as amended.
All Securities of any series issued under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or maturity of the Securities of
such series. All Securities of the same series shall be substantially identical
except as to denomination and except as may otherwise be provided in (i) an
indenture supplemental hereto, (ii) a resolution of the Board of Directors or
(iii) a certificate of an officer of the Company pursuant to a resolution of the
Board of Directors.
SECTION 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Securities of each series, the appurtenant coupons, if any,
and the certificates of authentication thereon shall be in substantially the
form as shall be established as provided in Section 2.01 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may be determined consistently
herewith by the officers executing such Securities and coupons, if any, as
evidenced by their execution of the Securities and coupons, if any.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
<PAGE> 19
11
The form of Trustee's certificate of authentication shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:........................... By.......................................
Authorized Signatory
SECTION 2.03. Denomination, Authentication and Dating of Securities. The
Securities of each series may be issued as registered Securities or unregistered
Securities, as provided in the terms of such Securities and shall be issuable in
the denominations of $1,000 and any integral multiple of $1,000, or such other
denominations as authorized as provided in Section 2.01. Each Security shall be
dated as of the date of its authentication.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this
Article Two, the Trustee shall thereupon authenticate and deliver said
Securities to or upon the written order of the Company, signed by the Chairman
of the Board, its President, a Chief Operating Officer, or one of its Vice
Presidents and by its Treasurer or one of its Assistant Treasurers. 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 8.01, shall be fully protected in
relying upon:
(1) A copy of the resolution or resolutions of the Board of
Directors in or pursuant to which the terms and form of the Securities
were established, 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 as of the date of such certificate, and
if the terms and form of such Securities are established by the
certificate of an
<PAGE> 20
12
officer of the Company pursuant to general authorization of the Board of
Directors, an Officers' Certificate setting forth the action taken
pursuant to such authorization;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate delivered in accordance with Section
15.07; and
(4) an Opinion of Counsel which shall state:
(a) that the form of such Securities has been established by a
supplemental indenture or by or pursuant to a resolution of the Board of
Directors in accordance with Section 2.02 and in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities have been established in
accordance with Section 2.01 and in conformity with the other provisions
of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees or vice presidents shall determine that such
action would expose the Trustee to personal liability to existing Holders.
SECTION 2.04. Execution of Securities. The Securities, and any coupons
appertaining thereto, shall be signed in the name and on behalf of the Company
manually or by facsimile by its Chairman of the Board of
<PAGE> 21
13
Directors, its President, a Chief Operating Officer, or one of its Vice
Presidents and by its Treasurer or one of its Assistant Treasurers, under its
corporate seal (which may be printed, engraved or otherwise reproduced thereon,
by facsimile or otherwise). Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security or coupon may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such
Securities or coupons, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was not such an
officer.
SECTION 2.05. Registration, Registration of Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes referred to
as the "registry books of the Company") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and the registration of transfers of Registered
Securities. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers shall
be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 5.02.
Upon surrender of any Registered Security of any series for registration
of transfer at the office or agency of the Company to be maintained as provided
in Section 5.02, 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 such series of any
<PAGE> 22
14
authorized denominations and of a like aggregate principal amount and Stated
Maturity.
At the option of the Holder thereof, Securities of a series, whether
Registered or Unregistered, which by their terms are registrable as to principal
only or as to principal and interest, may be exchanged for Registered Coupon
Securities or Fully Registered Securities of such series, as may be issued by
the terms thereof. At the option of the Holder thereof, Securities of a series,
whether Registered or Unregistered, which by their terms provide for the
issuance of Unregistered Securities, may be exchanged for Unregistered
Securities of such series. Securities so issued in exchange for other Securities
shall be of any authorized denomination and of like principal amount and Stated
Maturity and shall be issued upon surrender of the Securities for which they are
to be exchanged and, in the case of Coupon Securities, together with all
unmatured coupons and all matured coupons in default appertaining thereto, at
the office of the Company provided for in Section 5.02 and upon payment, if the
Company shall require, of charges provided herein. Whenever any Securities are
so surrendered, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making such exchange is entitled to
receive.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 5.02, such
Security shall be registered as to principal in the name of the Holder thereof
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the registry books of the Company, upon
presentation of such Security at such office or agency for similar notation
thereon, but such Security may be discharged from registration by being in like
manner transferred to bearer, whereupon transferability by delivery shall be
restored. Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.
Unregistered Securities shall be transferable by delivery. Registration
of any Coupon Security shall not affect the transferability by delivery of the
coupons appertaining thereto which shall continue to be payable to bearer and
transferable by delivery.
<PAGE> 23
15
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 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 duly executed, by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, 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 relation
thereto.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities of any series for a period of 15 days next preceding
any selection of Securities of such series to be redeemed, or (ii) to register
the transfer or exchange of any Securities so selected for redemption in whole
or in part except, in the case of any Security to be redeemed in part, the
portion thereof not to be so redeemed.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security or any coupon appurtenant to a Coupon
Security shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon written authorization or request of any
officer of the Company, the Trustee shall authenticate and deliver, a new
Security (in the case of a Coupon Security, with coupons corresponding to the
coupons appertaining to the mutilated, destroyed, lost or stolen Security or the
Security with respect to which a coupon shall have become mutilated, destroyed,
stolen or lost) of the same series and of like tenor and principal amount at
Stated Maturity bearing a number not contemporaneously outstanding. In every
case the applicant for a substituted Security shall furnish to the Company and
to the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof. In every case of
<PAGE> 24
16
mutilation, the applicant shall surrender to the Trustee, the mutilated Security
or the Security to which the mutilated coupon appertains, in the case of a
Coupon Security, with all coupons (including any mutilated coupons) appertaining
thereto.
Upon the issuance of any substituted Security, 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 connected
therewith. In case any Security or coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security or coupon, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish the Company
and the Trustee with such security or indemnity as may be required by them to
save each of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the destruction, loss or theft of
such Security or coupon and of the ownership thereof.
Every substituted Security, and in the case of Coupon Securities, its
appurtenant coupons, issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any Security or coupon of that series is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security or coupon of that series
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
coupons of that series duly issued hereunder. All Securities and coupons shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and coupons and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.07. Temporary Securities. Pending the preparation of
definitive Securities of any series the Company may execute and the Trustee
shall authenticate and deliver printed or lithographed temporary Securities.
Temporary Securities shall be issuable in any authorized denomination, and
<PAGE> 25
17
substantially in the form of the definitive Securities of that series, but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security of any series shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of that series. Without unreasonable delay, the
Company will execute and deliver to the Trustee definitive Securities of that
series and thereupon any or all temporary Securities of that series may be
surrendered in exchange therefor, at the Principal Office of the Trustee, and
the Trustee shall authenticate and deliver in exchange for such temporary
Securities an equal aggregate principal amount at Stated Maturity of definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. 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 that series authenticated and delivered hereunder.
SECTION 2.08. Cancellation of Securities Paid, etc. Securities of any
series surrendered for the purpose of payment, redemption, exchange or
registration of transfer and all coupons surrendered for payment, shall, if
surrendered to the Company or any paying agent, be surrendered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be cancelled by it,
and no Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture or of such series of
Securities. The Trustee shall destroy cancelled Securities or coupons and
deliver a certificate of such destruction to the Company. If the Company shall
acquire any of the Securities or coupons, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or coupons unless and until the same are surrendered to the Trustee
for cancellation.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. Applicability of Article. The Company may reserve the
right to redeem and pay, prior to Stated Maturity, all or any part of the
<PAGE> 26
18
Securities of any series, either by optional redemption, sinking fund or
otherwise, by provision therefor in the Security for such series established
pursuant to Sections 2.01 and 2.02. Redemption of Securities of any series shall
be made in accordance with the terms of such Securities and, to the extent that
this Article does not conflict with such terms, in accordance with this Article.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all or any part of the
Securities of a series in accordance with their terms, it shall fix a date for
redemption and shall mail a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to each Holder of a
Registered Security to be redeemed as a whole or in part at his address as the
same appear on the registry books of the Company and, if Unregistered Securities
are to be redeemed, shall publish a notice of redemption at least 30 and not
more than 60 days prior to the date fixed for redemption in an Authorized
Newspaper in the Place of Payment. If mailed in the manner herein provided, the
notice shall be conclusively presumed to have been duly given, whether or not
any such Holder receives such notice. Any defect in the notice to the Holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price, the place where such Securities are to be
surrendered for payment of the redemption price, which shall be the office or
agency of the Company in each Place of Payment, that payment will be made upon
presentation and surrender of such Securities and all coupons appertaining
thereto, if any, that accrued interest, if any, to the redemption date will be
paid as specified in said notice, and that on and after said date, interest
thereon or on the portions thereof to be redeemed win cease to accrue. In case
the redemption is on account of a sinking fund, said notice shall so specify. If
less than all the outstanding Securities of a series are to be redeemed, the
notice of redemption shall specify the numbers of the Securities of that series
to be redeemed. In case any Security of a series is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of that series in
the principal amount and Stated Maturity equal to the unredeemed portion thereof
will be issued.
<PAGE> 27
19
If fewer than all the Securities of a series are to be redeemed, the
Company shall give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount at Stated Maturity of
Securities to be redeemed, and the Trustee shall select from the Securities
outstanding in such manner as in its sole discretion it shall deem appropriate
and fair, the Securities of that series or portions thereof to be redeemed.
Securities of a series may be redeemed in part only in multiples of $1,000,
except as otherwise set forth in the form of Security to be redeemed.
Any notice of redemption to be mailed by the Company pursuant to this
Section 3.02 may be mailed, at the Company's direction, by the Trustee in the
name and at the expense of the Company.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been mailed or published, as the case may be as above provided,
the Securities or portions of Securities of a series with respect to which such
notice has been mailed or published shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with accrued interest to the redemption date and on and after said date
(unless the Company shall default in the payment of such Securities at the
applicable redemption price, together with accrued interest, if any, to said
date) any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue, and such Securities and portions of
Securities of any series shall be deemed not to be outstanding hereunder and
shall not be entitled to any benefit under this Indenture except to receive
payment of the redemption price, together with accrued interest, if any, to the
date fixed for redemption. On the redemption date specified in the notice of
redemption, the Company shall deposit with the Trustee or with one or more
paying agents an amount of money, in immediately available funds, sufficient to
redeem on the redemption date all the Securities so called for redemption at the
applicable redemption price, together with accrued interest, if any, to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with accrued interest, if any, to the date fixed for
redemption.
<PAGE> 28
20
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee, upon the written request or order of any officer
of the Company, shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of such series, of
authorized denominations in aggregate principal amount and Stated Maturity equal
to the unredeemed portion of the Security so presented.
ARTICLE FOUR.
SINKING FUNDS.
SECTION 4.01. 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 2.01 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."
SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that 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; provided, however, 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
mandatory sinking fund payment shall be reduced accordingly.
SECTION 4.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
<PAGE> 29
21
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 4.02,
which Securities will accompany such certificate, if not theretofore delivered,
and whether the Company intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall also state that no Event of Default with respect to such series has
occurred and is continuing.
Any mandatory or optional sinking fund payment or payments made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $50,000 (or a lesser sum if the Company shall so
request) with respect to Securities of any particular series shall be applied by
the Trustee on the sinking fund payment date on which such payment is made (or,
if such payment is made prior to a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such
Securities at the redemption price specified in such Securities for operation of
the sinking fund together with accrued interest to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee
to the redemption of Securities shall be added to the next cash sinking fund
payment received by the Trustee for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 4.03. Any and
all sinking fund moneys with respect to the Securities of any particular series
held by the Trustee on the last sinking fund payment date with respect to such
Securities, and not held for the payment or redemption of particular Securities,
shall be applied by the Trustee, to the payment of the principal of the
Securities of that series at maturity.
The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the penultimate paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
<PAGE> 30
22
On each sinking fund payment date, the Company shall pay to the Trustee
in immediately available funds a sum equal to all accrued interest to the date
fixed for redemption on Securities to be redeemed on such sinking fund payment
date pursuant to this Section 4.03.
The Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail or publish any notice of redemption of such Securities by
operation of the sinking fund for such series during the continuance of a
default in payment of interest on such Securities or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph),
except that if the notice of redemption of any such Securities shall theretofore
have been mailed or published in accordance with the provisions hereof, the
Trustee shall redeem Securities if cash sufficient for that purpose shall be
deposited with the Trustee for that purpose in accordance with the terms of this
Article Four. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of all
Securities of such series; provided, however, that in case such default or Event
of Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on the next sinking fund payment date for such Securities
on which such moneys may be applied pursuant to the provisions of this Section
4.03.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of the Securities that it
will duly and punctually pay or cause to be paid the principal of and premium,
if any, and interest, if any, on the Securities of that series in accordance
with the terms thereof and this Indenture and will comply with all other forms,
agreements and conditions contained in or made in this Indenture for the benefit
of such Securities.
SECTION 5.02. Offices for Notices and Payments, etc. So long as any
Securities of any series remain outstanding, the Company will maintain in
<PAGE> 31
23
the Borough of Manhattan, The City of New York, a Place of Payment as an office
or agency where the Securities of that series may be presented for payment, an
office or agency where the Securities of that series may be presented for
registration of transfer and for exchange as provided in this Indenture and an
office or agency where notices and demands to or upon the Company in respect of
the Securities of that series or of this Indenture may be served; provided,
however, that in the case of any Security issued in bearer form in the
Eurodollar Market, the office for payment of bearer Securities and coupons
appertaining thereto will be located in London, England. The Company will give
to the Trustee written notice of the location of any such office or agency and
of any change of location thereof. In case the Company shall fail to maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made at
the Principal Office of the Trustee (or at any other address previously
furnished in writing to the Company by the Trustee) and notices may be served at
the Principal Office of the Trustee. The Company initially appoints the Trustee
its agent for payment, for registration of transfers, for exchange of the
Securities and where notices and demands may be served upon the Company.
Notwithstanding any other provisions to the contrary, the Company at its option
may make payment of Registered Securities by mail as provided in Section 2.01.
SECTION 5.03. Limitation on Liens. Nothing in this Indenture or in the
Securities shall in any way restrict or prevent the Company or any Subsidiary
from incurring any indebtedness; provided that the Company covenants and agrees
that neither it nor any Restricted Subsidiary will issue, assume or guarantee
any notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed (notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed being hereinafter in this Article Five called
"Debt") secured by mortgage, lien, pledge or other encumbrance (mortgages,
liens, pledges or other encumbrances being hereinafter in this Article Five
called "Mortgages") upon any Restricted Property, without effectively providing
that the Securities of each series then outstanding and thereafter created
(together with, if the Company so determines, any other indebtedness or
obligation then existing and any other indebtedness or obligation thereafter
created ranking equally with the Securities then existing or thereafter created
which is not subordinated to the Securities of each series) shall be secured
equally and ratably with (or prior to) such Debt so long as such Debt shall be
so secured, except that the foregoing provisions shall not apply to:
<PAGE> 32
24
(a) Mortgages affecting property of a corporation existing at the time
it becomes a Subsidiary or at the time it is merged into or consolidated with
the Company or a Subsidiary;
(b) Mortgages on property existing at the time of acquisition thereof or
incurred to secure payment of all or part of the purchase price thereof or to
secure Debt incurred prior to, at the time of or within 24 months after
acquisition thereof for the purpose of financing all or part of the purchase
price thereof;
(c) Mortgages on property to secure all or part of the cost of
exploration, drilling or development thereof or (in the case of property which
is, in the opinion of the Board of Directors, substantially unimproved for the
use intended by the Company) all or part of the cost of improvement thereof, or
to secure Debt incurred to provide funds for any such purpose;
(d) Mortgages which secure only an indebtedness owing by a Subsidiary to
the Company or a Subsidiary;
(e) Mortgages in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or cost of constructing or
improving the property subject thereto, including, without limitation, Mortgages
to secure Debt of the pollution control or industrial revenue bond type; or
(f) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Mortgage referred to in
the foregoing clauses (a) to (e) inclusive or of any Debt secured thereby,
provided that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Mortgage shall be
limited to all or part of substantially the same property which secured the
Mortgage extended, renewed or replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 5.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by Mortgages which would otherwise be subject to
<PAGE> 33
25
the foregoing restrictions in an aggregate principal amount which, together with
the aggregate outstanding principal amount of all other Debt of the Company and
its Restricted Subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (a) to
(f) inclusive above) and the aggregate Value, as defined in Section 5.05, of the
Sale and Lease-Back Transactions, as defined in Section 5.04, in existence at
such time (not including Sale and Lease-Back Transactions as to which the
Company has complied with Section 5.04(b)), does not at any one time exceed 10%
of the Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries.
The following types of transactions, among others, shall not be deemed
to create Debt secured by Mortgage:
(1) the sale or other transfer of oil, gas or other minerals in place
for a period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money or such
minerals, or the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment; and
(2) Mortgages required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by it with
or at the request of the United States of America, any State or any department,
agency or instrumentality of either.
SECTION 5.04. Limitation on Sale and Lease-Back. The Company covenants and
agrees that neither it nor any Restricted Subsidiary will enter into any
arrangement with any Person (other than the Company or a Subsidiary), or to
which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary for a period of more than three years of any Restricted
Property which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person (other than the
Company or a Subsidiary), to which funds have been or are to be advanced by such
Person on the security of the leased property (in this Article Five called "Sale
and Lease-Back Transactions") unless either;
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 5.03, to incur Debt in a principal amount
equal to or exceeding the Value of such Sale and Lease-Back
<PAGE> 34
26
Transaction secured by Mortgage on the property to be leased, without equally
and ratably securing the Securities; or
(b) the Company (and in any such case the Company covenants and agrees
that it will do so) during or immediately after the expiration of four months
after the effective date of such Sale and Lease-Back Transaction (whether made
by the Company or a Restricted Subsidiary) applies to the voluntary retirement
of indebtedness of the Company (including Securities, provided that Securities
may only be redeemed at the redemption prices and in accordance with the other
provisions of the form thereof), maturing by the terms thereof more than one
year after the original creation thereof and ranking at least pari passu with
the Securities (hereinafter in this Section called "Funded Debt") an amount
equal to the Value of such Sale and Lease-Back Transaction, less the principal
amount of Securities delivered, within four months after the effective date of
such arrangement to the Trustee for retirement and cancellation and the
principal amount of other Funded Debt voluntarily retired by the Company within
such four-month period, excluding retirements of Securities and other Funded
Debt as a result of conversions or pursuant to mandatory sinking fund or
prepayment provisions or by payment at maturity.
SECTION 5.05. Definition of "Value." For purposes of Sections 5.03 and
5.04, the term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds of the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (2) the fair value, in the opinion of the
Board of Directors, of such property at the time of entering into such Sale and
Lease-Back Transaction, in either case divided first by the number of full years
of the term of the lease and then multiplied by the number of full years of such
term remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee
for any one or more series of Securities, will appoint a Trustee, in the manner
provided in Section 8.10 so that there shall at all times be a Trustee with
respect to each series of Securities hereunder.
SECTION 5.07. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee with respect to the Securities
<PAGE> 35
27
of any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 5.07
(1) that it will hold all sums held by it as such agent for the payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series; and
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series when the same shall be due and payable.
(b) If the Company shall act as its own paying agent with respect to the
Securities of any series it will, on or prior to each due date of the principal
of and premium, if any, or interest, if any, on any of the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of
such Securities or the coupons appertaining thereto, as the case may be, a sum
sufficient to pay such principal and premium, if any, or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor under such Securities) to
make any payment of the principal of and premium, if any, or interest, if any,
on such Securities when the same shall become due and payable.
(c) Whenever the Company shall have one or more paying agents with
respect to the Securities of any series it will deposit with a paying agent, on
each due date of the principal of and premium, if any, or interest, if any, on
any Securities of such series, a sum in immediately available funds sufficient
to pay the principal and premium, if any, or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Holders of such Securities
or the coupons appertaining thereto, as the case may be, 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;
provided, however, that in the case of any payment of principal, premium, if
any, or interest on any Security issued in bearer form in the Eurodollar Market,
the Company will deposit with the paying agent, on the Business Day next
preceding the due date in funds available on the due date the principal of,
premium, if any, or interest on said Security.
(d) Anything in this Section 5.07 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
<PAGE> 36
28
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 5.07, such sums to be held by the Trustee upon the
trusts herein contained.
(e) Anything in this Section 5.07 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.07 is subject to
Sections 13.03 and 13.04.
SECTION 5.08. Certificate to Trustee. The Company will deliver to the
Trustee on or before September 1 in each year during which any Securities are
outstanding hereunder (beginning with respect to Securities of each series with
the September 1 next following the issue date of any series of Securities) an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company they would normally have
knowledge of any default by the Company in the performance of any covenants
contained in Sections 5.03, 5.04, 12.01 or 12.02, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, with respect to the
Registered Securities of each series (i) semi-annually, not later than each
interest payment date for such series and on dates to be determined pursuant to
Section 2.01 for non-interest bearing Securities in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders, as of the respective record dates therefor, and on dates to be
determined pursuant to Section 2.01 for non-interest bearing Securities, and
(ii) at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders as of a
date not more than 15 days prior to the time such information is
<PAGE> 37
29
furnished; provided, however, that so long as the Trustee shall be the registrar
of a series of Securities all of which are Registered Securities, such list
shall not be required to be furnished in respect of that series.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of Registered Securities of any series
contained in the most recent list furnished to it as provided in Section 6.01 or
received by the Trustee in its capacity as Securities registrar. The Trustee may
destroy any list furnished to it as provided in Section 6.01 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities of the same series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with Holders of
Securities of all series with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit for such purpose, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 6.02, or
(2) inform such applicants as to the approximate number of Holders of
Securities of such series or of all series, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 6.02 and as to
the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or of all series, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a)
<PAGE> 38
30
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all series, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If said Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each Holder of any Security or coupon or both, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent shall be held accountable by reason of the
disclosure of the name and address of such Holder in accordance with the
provisions of subsection (b) of this Section 6.02, 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
said subsection (b).
SECTION 6.03. Reports by the Company. (a) The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is required to file the
same with the Securities and Exchange 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 said Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with said
Commission pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports
<PAGE> 39
31
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to each Holder of
Securities, in the manner and to the extent provided in Section 6.04, within 30
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before December 15 in every
year after the first series of Securities is issued hereunder, so long as any
Securities are outstanding hereunder, the Trustee shall transmit to the Holders,
as hereinafter in this Section 6.04 provided, a brief report dated as of the
preceding October 15 with respect to:
(1) its eligibility under Section 8.09 and its qualification under Section
8.08 or in lieu thereof, if to the best of its knowledge it has continued to be
eligible and qualified under such Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not
<PAGE> 40
32
more than 1/2 of 1% of the principal amount at Stated Maturity of the Securities
outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other indebtedness
owing by the Company (or by any other obligor on the Securities) to the Trustee
in its individual capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of subsection (b) of Section 8.13,
(4) the property and funds, if any, physically in the possession of the
Trustee, as such, on the date of such report;
(5) any additional issue of Securities which the Trustee has not previously
reported; and
(6) any action taken by the Trustee in the performance of its duties under
this Indenture which it has not previously reported and which in its opinion
materially affects any of the Securities, except action in respect of a default,
notice of which has been or is to be withheld by it in accordance with the
provisions of Section 7.08.
(b) The Trustee shall transmit to the Holders, as hereinafter provided, a
brief report with respect to the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such), since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this Section 6.04
(or, if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities, on property or funds held or
collected by it as Trustee, and which it has not previously reported pursuant to
this subsection, except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of Securities at Stated Maturity outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Registered Holders of Securities, as the names and addresses of
such Holders appear in the registry books of the Company;
<PAGE> 41
33
(2) to such Holders of Securities as have, within the two years preceding
such transmission, 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 whose name and address is preserved at the time by the
Trustee, as provided in Section 6.02.
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed and also with the Securities and Exchange Commission. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default. "Event of Default," whenever used herein
with respect to Securities of any series means each one of the following events
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture under which such series of
Securities is issued, if any, or in the form of Security for such series:
(a) default in the payment of any installment of interest upon any Security
of that series when the same becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on any
Securities of that series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment or analogous
obligation as and when the same shall become due and payable by the terms of
that series, and continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the
<PAGE> 42
34
Securities of such series or in this Indenture (other than a covenant or
agreement in respect of the Securities of such series a default in the
performance of which or the breach of which is elsewhere in this Section 7.01
specifically provided for or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than such
series), and continuance of such default or breach for a period of 90 days after
the date on which written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount at Stated Maturity of the Securities of that series at the time
outstanding; or
(e) if there shall be entered a decree or order by a court having
jurisdiction for relief in respect of the Company under the Federal Bankruptcy
Code, as now constituted or as hereafter amended, or any other applicable
Federal or State bankruptcy law or other similar law, or appointing a receiver,
trustee or liquidator, or other similar official of the Company or of any
substantial part of its property, or ordering the windingup or liquidation of
its affairs and the continuance of any such decree or order unstayed and in
effect for a period of 90 consecutive days; or
(f) if the Company shall file a petition or an answer or consent seeking
relief under the Federal Bankruptcy Code, as now constituted or as hereinafter
amended, or any other applicable Federal or State bankruptcy law or other
similar law, or shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking possession by a
receiver, trustee, custodian or other similar official of the Company or of any
substantial part of its property, or the Company shall make an assignment for
the benefit of creditors generally or shall admit in writing to its inability to
pay its debts generally as they become due; or
(g) any other Event of Default provided in the form of Security for such
series, or in the supplemental indenture under which such series of Securities
is issued, if any.
If an Event of Default described in clauses (a), (b), (c) or (g) with respect to
Securities of any series at the time outstanding, then and in each and every
such case, unless the principal of all the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of
<PAGE> 43
35
not less than 25% in aggregate principal amount at Stated Maturity of the
Securities of such series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare the principal
amount (in the case of Securities that are Original Issue Discount Securities.
such principal amount as may be determined in accordance with the terms of that
series) of all the Securities of such series to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. If an Event of Default described in
clauses (d), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount at Stated Maturity of all the Securities then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be determined in accordance with the terms of that series) of all the
Securities to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. The
foregoing provisions are, however, subject to the condition that if, at any time
after the principal amount (in the case of Securities that are Original Issue
Discount Securities, such portion of the principal amount as may be determined
in accordance with the terms of that series) of the Securities of any series or
of all the Securities, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series or of all of the
Securities, as the case may be, and the principal of and premium, if any, on all
Securities of such series or of all the Securities, as the case may be, which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and premium, if any, at
the rate of interest or yield to maturity (in the case of Original Issue
Discount Securities) borne by the Securities of such series or at the rates of
interest or yields to maturity of all
<PAGE> 44
36
the Securities, as the case may be, to the date of such payment or deposit) and
the reasonable expenses of the Trustee, and any and all defaults under this
Indenture, other than the nonpayment of principal of or premium, if any, or
accrued interest, if any, on Securities of such series or of all of the
Securities, as the case may be, which shall have become due by acceleration,
shall have been remedied--then and in every such case the Holders of a majority
in aggregate principal amount at Stated Maturity of the Securities of such
series or of all of the Securities, as the case may be, then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults with
respect to that series or of all of the Securities, as the case may be, and
rescind and annul such declaration and its consequences; but no waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 7.02. Payment of Securities on Default; Suit Therefor. The Company
covenants that in case (1) default shall be made in the payment of any
installment of interest upon any Security of any series as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, or (2) default shall be made in the payment of the principal of or
premium, if any, on any Security of any series as and when the same shall have
become due and payable, whether at maturity of Securities of that series or
otherwise, or (3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due by the terms of
the Securities of any series and such default shall continue for a period of 30
days--then, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the Holder of any such Security, the whole amount that then shall
have become due and payable on any such Security for principal and premium, if
any, or interest, if any, or both, as the case may be, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of
<PAGE> 45
37
such interest is enforceable under applicable law) upon the overdue installments
of interest at the rate of interest or yield to maturity (in the case of
Original Issue Discount Securities) borne by any such Security and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree 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, wherever situated, of the Company or
any other obligor upon such Securities.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under the Federal Bankruptcy Code, as now constituted or as hereafter
amended, or any other Federal or State bankruptcy law or other similar law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee (irrespective of whether the principal of any Securities of any
series 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
pursuant to the provisions of this Section 7.02) shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and premium, if any, and
interest, if any, owing and unpaid in respect of the Securities of any series
(in the case of Securities that are Original Issue Discount Securities, such
principal amount as would be then due and payable upon declaration of
acceleration in accordance with the terms of that series) and, in case of any
judicial proceedings, to file such proofs of
<PAGE> 46
38
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and of the Holders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, its or their creditors, or its or their property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of its charges and expenses; and
any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders 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 compensation and expenses, including counsel fees incurred by it up to
the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
approve, consent, accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee with respect to the Securities of any series shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be for
the ratable benefit of the Holders of the Securities in respect of which such
action is taken.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee with respect to any series of Securities under this
Article Seven shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys on account of
principal, premium, if any, or interest, if any, upon presentation of the
several Securities of such series or the coupons appertaining thereto, as the
case may be, and stamping thereon 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 8.06
hereof;
<PAGE> 47
39
SECOND: In case the principal of the outstanding Securities of that series
shall not have become due and be unpaid, to the payment of interest on the
Securities of that series, in the order of the maturity of the installments of
such interest with interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at the rate of
interest (or yield to maturity in the case of Original Issue Discount
Securities) borne by the Securities of that series, such payments to be made
ratably to the Persons entitled thereto;
THIRD: In case the principal of the outstanding Securities of a series in
respect of which such moneys have been collected shall have become due and
payable, by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of that series for principal and premium,
if any, and interest, if any, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by the
Trustee) upon any overdue installments of interest at the rate of interest (or
yield to maturity in the case of Original Issue Discount Securities) borne by
the Securities of that series, and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of that
series, then to the payment of such principal and premium, if any, and interest,
if any, without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Security of that series over any other Security of that series, ratably to the
aggregate of such principal and premium, if any, and any accrued and unpaid
interest. Any surplus then remaining shall be paid to the Company or to such
other Person as shall be entitled to receive it.
SECTION 7.04. Proceedings by Holders. No Holder of any Security of any series
or of any coupon appertaining thereto shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount at
Stated Maturity of the Securities of that series (or, in case of an Event of
Default described in clause (d), (e) or (f) of
<PAGE> 48
40
Section 7.01, 25% in aggregate principal amount of all Securities then
outstanding (in the case of Original Issue Discount Securities, such principal
amount to be determined as provided in the definition of "Securities")) shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as the Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee during such 60 day period by the Holders of a majority in principal
amount at Stated Maturity of the outstanding Securities of such series, it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security of that series with every other taker and Holder of every
Security of that series or coupons appertaining thereto and the Trustee, that no
one or more Holders of Securities of any series 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 Holder of Securities of
that series or any other series or coupons appertaining thereto, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security or coupon to receive payment of the principal of,
and premium, if any, and interest, if any, on such Security, on or after the
respective Stated Maturities expressed in such Security or, in the case of
redemption or repayment on or after the redemption date or repayment date, as
the case may be, and to institute suit for the enforcement of any such payment
on or after such respective date shall not be impaired or affected without the
consent of such Holder.
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee, in its discretion, may proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement
<PAGE> 49
41
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Seven to the Trustee or to the Holders of Securities or
coupons shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or such Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 7.04, every power and remedy given by this Article Seven
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority
of Holders. The Holders of a majority in aggregate principal amount of the
Securities of all series affected (voting as one class) (in the case of Original
Issue Discount Securities, such principal amount to be determined as provided in
the definition of "Securities") at the time outstanding 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, provided, however, that (subject to the provisions of Section 8.01 )
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees or Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of the Securities of a particular
series (or all of the Securities as the case may be), the Holders of a majority
in aggregate principal amount at Stated Maturity of the Securities of that
series at the time outstanding may on behalf of the Holders of all the
Securities of that series waive any past default or Event of Default described
in clause
<PAGE> 50
42
(a), (b), (c) or (g) of Section 7.01 (or, in the case of an event specified in
clause (d), (e) or (f) of Section 7.01, the Holders of an aggregate principal
amount of all the Securities then outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Securities")) may waive such default or Event of Default as its
consequences except (1) a default in the payment of interest, if any, or
premium, if any, on, or the principal of, any of the Securities or in the
payment of any sinking fund installment or analogous obligation with respect to
Securities or (2) in respect of a covenant or provision hereof which under
Article Eleven cannot be modified or amended without the consent of the Holder
of each Security outstanding of the series affected. Upon any such waiver the
Company, the Trustee and the Holders of Securities of that series (or all of the
Securities, as the case may be) shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.07, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of any default hereunder with respect to Securities of any
series, mail to all Holders of Securities of that series in the manner and to
the extent provided in Section 6.04(c) notice of such default known to the
Trustee, unless such default shall have been cured prior to the giving of such
notice; and provided that, except in the case of default in the payment of the
principal of or premium, if any, or interest, if any, on any of the Securities
of that series or in the making of any sinking fund payment or analogous
obligation with respect to Securities of that series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors or
trustees, 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 interests of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 7.01(d) with respect to Securities of such
series, no such notice to Holders of Securities of such series shall be given
until at least 90 days after the occurrence thereof. For the purpose of this
<PAGE> 51
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Section, the term "default," with respect to 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 Securities of such series.
SECTION 7.09. Undertaking to Pay 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 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 7.09 shall not apply 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 at
Stated Maturity of the Securities outstanding of that series (or, in case of any
suit relating to or arising under clause (d), (e) or (f) of Section 7.01, 10% in
principal amount of all Securities outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Securities")) or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or interest,
if any, on any Security on or after the respective Stated Maturities expressed
in such Securities (or in the case of redemption or repayment on or after the
redemption date or repayment date).
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.0 1. Duties and Responsibilities of Trustee. With respect to the
Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of that series
and after the curing of a Events of Default which may have occurred with respect
to the Securities of that series, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations with respect to such series shall be read
<PAGE> 52
44
into this Indenture against the Trustee. In case an Event of Default with
respect to the Securities of any series has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to that series 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 or her own affairs.
Prior to the occurrence of an Event of Default with respect to the
Securities of a series, and after the curing or waiving of all Events of Default
with respect to that series which may have occurred and in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any 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.
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
(a) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts, and
(b) 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 pursuant to Section 7.07 of any series 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it has reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
<PAGE> 53
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SECTION 8.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 8.01
(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, consent, order, bond, debenture 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, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a written statement signed in the name of the
Company by the Chairman of the Board of Directors, the President, a Chief
Operating Officer, one of its Vice Presidents or its Treasurer (unless other
evidence in respect thereof is herein specifically prescribed); and any
resolution of the Board of Directors shall be sufficiently evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant Secretary
of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent
order, approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount at Stated Maturity of the Securities then
<PAGE> 54
46
outstanding of any series affected or of all the Securities, as the case may be;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to so proceeding; 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.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any of
the Securities or coupons; provided that the Trustee shall not be relieved of
its duty to authenticate Securities as authorized by this Indenture. The Trustee
shall not be accountable for the use or application by the Company of any
Securities or the proceeds of any Securities authenticated and delivered by the
Trustee in conformity with the provisions of this Indenture.
SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities. The
Trustee or any paying agent or Security registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities or the coupons appertaining thereto with the same
rights it would have if it were not Trustee, paying agent or Security registrar.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions of
Section 13.04, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 8.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the
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47
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim of liability arising in connection with its
duties under this Indenture. The obligations of the Company under this Section
8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 8.08, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign in the manner and with the
effect specified in Section 8.10.
<PAGE> 56
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(b) In the event that the Trustee shall fail to comply with the provisions
of subsection (a) of this Section 8.08, the Trustee shall, within 10 days after
the expiration of such 90 day period, transmit notice of such failure to all
Holders of Securities, to the extent provided in Section 6.04(c).
(c) For the purposes of this Section 8.08, the Trustee shall be deemed to
have a conflicting interest with respect to Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
outstanding securities of any series other than that series or is trustee under
another indenture under which any other securities, or certificates of interest
or participation in any other securities, of the Company are outstanding unless
such other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture; provided that
there shall be excluded from the operation of this paragraph (A) the Indenture
dated April 1, 1970 by and between the Company and the Trustee, as successor
Trustee, pursuant to which the Company's 8-5/8% Debentures due April 1, 2000 are
outstanding; and (B) this Indenture with respect to the Securities of any series
other than that series or any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding if (i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act of 1939, unless the Securities
and Exchange Commission shall have found and declared by order pursuant to
subsection (b) of section 305 or subsection (c) of section 307 of the Trust
Indenture Act of 1939 that differences exist between the provisions of this
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49
Indenture and the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to Securities of that
series and any such other series and such other indentures, or (ii) the Company
shall have sustained the burden of proving, on application to the Securities and
Exchange Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to Securities of that series and
such other series and such other indenture is not so likely to involve a
material conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of that series or such other
series or such indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor
upon the Securities of any series issued under this Indenture or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with the
Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (A) one
individual may be a director or an executive officer of the Trustee and a
director or an executive officer of the Company, but may not be at the same time
an executive officer of both the Trustee and the Company; (B) if and so long as
the number of directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer of the Trustee
and a director of the Company; and (C) the Trustee may be designated by the
Company or by an underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner, or executive
<PAGE> 58
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officer thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of or holds as collateral security
for an obligation which is in default, (A) 5% or more of the voting securities,
or 10% or more of any other class of security, of the Company, not including the
Securities issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10% or more of any
class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, 5% or more of the voting securities of
any person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, 10% or more of any class of security of
any person who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition to the extent
that such securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after May 15, in each
calendar year, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such May 15. If the Company
fails to make payment in full of principal of or interest
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on any of the Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above mentioned capacities as
of the date of the expiration of such 30-day period and, after such date,
notwithstanding the foregoing provisions of this paragraph (9), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c).
The specifications of percentages in paragraphs (5) to (9), inclusive, of
this subsection (c) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c)
only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph hereof, the words
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
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security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security" or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(d) For the purposes of this Section 8.08.
(1) The term "underwriter" when used with reference to the Company shall
mean every person who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or any
individual performing similar functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the Securities.
(6) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the treasurer of
a
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corporation, and any individual customarily performing similar functions with
respect to any organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
The percentages of voting securities and other securities specified in this
Section 8.08 shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section 8.08 (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a person means such
percentage of the aggregate amount of securities of the class outstanding.
(C) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of shares
if relating to capital shares, and the number of units if relating to any other
kind of security.
(D) The term "outstanding" means issued and not held by or for the account
of the issuer. The following securities shall not be deemed outstanding within
the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to securities
of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to another
class of securities of the issuer, if the obligation evidenced by such other
class of securities is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(iv) securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(E) A security shall be deemed to be of the same class as another security
if both securities confer upon the holder or holders thereof
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substantially the same rights and privileges; provided, however, that in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes, and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each
series of Securities hereunder shall at all times be a corporation organized and
doing business under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority and having its principal office
and place of business in The City of New York, if there be such a corporation
having its principal office and place of business in said City. If such
corporation publishes reports of condition at least annually, pursuant to law or
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 8.09, 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. In case at any time the
Trustee with respect to each series of Securities shall cease to be eligible in
accordance with the provisions of this Section 8.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may resign
with respect to any series of Securities at any time by giving written notice of
such resignation to the Company and by giving notice thereof to the Holders of
the applicable series of Securities in manner and to the extent provided in
Section 6.04(c). Upon receiving such notice of resignation with respect to the
applicable series of Securities, the Company shall promptly appoint a successor
trustee with respect to that series by written instrument, in duplicate,
executed by or pursuant to order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If a successor trustee shall not have been so appointed with
respect to any series of
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Securities, and shall have accepted appointment within 30 days after the giving
of such notice of resignation to the Holders of such series, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Holder who has been a bona fide holder of a Security
or Securities of the applicable series for at least six months may, subject to
the provisions of Section 7.09, on behalf of such Holder and all others
similarly situated, petition any such court for the appointment of a successor
trustee with respect to that series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of subsection (a)
of Section 8.08 after written request therefor by the Company or by any Holder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, with respect to any
series of Securities 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, the Company may remove the Trustee with respect to any
one or more of such series of Securities and appoint a successor trustee of that
series by written instrument, in duplicate, executed by or pursuant to order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or subject to the
provisions of Section 7.09, any Holder has been a bona fide Holder of a Security
or Securities of that series for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to that series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee with respect to that series.
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(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any time
remove the Trustee with respect to such series and nominate with respect to such
series a successor trustee which shall be deemed appointed as successor trustee
with respect to such series unless within 10 days after such nomination the
Company objects thereto, in which case the Trustee so removed or any Holder of
Securities of the series may petition any court of competent jurisdiction for
appointment of a successor trustee with respect to such series upon the terms
and conditions and otherwise as provided in subsection (a) of this Section 8.10.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee with respect to an applicable series of Securities pursuant to
any of the provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee for that series as provided
in Section 8.11.
(e) The Company shall give notice as provided in Section 15.05 of each
resignation or removal of the Trustee with respect to any series of Securities.
Each notice shall include the name of such successor trustee and the address of
its Principal Office and shall be given within 60 days of such event.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder. and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 8.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers and trusts with respect to any
series of Securities of the trustee so ceasing to act. Upon request of any
successor trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and
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confirm to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 8.06.
In case of the appointment hereunder of a successor trustee with respect to
the Securities of any one or more (but not all) series, the Company, the
predecessor trustee and each successor trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which shall
contain (1) such provisions as shall be necessary or desirable to transfer and
confirm to, and vest in each successor trustee all of the rights, powers and
duties of the predecessor 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, it shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor trustee with
respect to the Securities of any series as to which the predecessor trustee is
not retiring shall continue to be vested in the predecessor 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.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the provisions
of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, the Company shall mail notice of the succession of such trustee
hereunder to all the Registered Holders of such series as the names and
addresses of such Holders shall appear on the registry books of the Company and
shall publish notice of such event once in an Authorized Newspaper in the Place
of Payment. If the Company fails to mail such notice in the prescribed manner
within 10 days after the acceptance of
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appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 8.12. Succession by Merger, etc. 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 the business of the
Trustee, shall be the successor of the Trustee hereunder provided such
corporation shall be qualified under the provisions of Section 8.08 and eligible
under the provisions of Section 8.09 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Securities of any series so authenticated; and in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities of any series either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities of any series or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor trustee or authenticate
Securities of any series in the name of any predecessor trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to
the provision of subsection (b) of this Section 8.13, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities of any series within four
months prior to a default, as defined in subsection (c) of this Section 8.13,
or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in special account for the benefit
of the Trustee individually, the Holders of the Securities of any series, and
the holders of other indenture securities (as defined in paragraph (2) of
subsection (c) of this Section 8.13):
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(1) an amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest, effected
after the beginning of such four-month period and valid as against the Company
and its other creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such four-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such
claim by any person (other than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Federal or State bankruptcy laws or
other similar laws;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the beginning
of such four-month period;
(C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any such
claim, if such claim was created after the beginning of such four-month period
and such property was received as security therefor simultaneously with the
creation thereof, and if the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section 8.13,
would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as
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provided in such paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of Securities of a series as to which such Trustee is
acting as Trustee hereunder and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal or
State bankruptcy laws or other similar laws, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal or State bankruptcy laws or other
similar laws, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal or State bankruptcy laws or other similar laws, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Holders and the
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holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four-month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have given
rise to the obligation to account, if such Trustee had continued as trustee,
occurred after the beginning of such four-month period; and
(ii) such receipt of property or reduction of claim occurred within four
months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture,
or any security or securities having a maturity of one year or more at the time
of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction, or by this Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making thereof is given to
the Holders at the time and in the manner provided in Section 6.04 with respect
to reports pursuant to subsections (a) and (b) thereof, respectively;
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(3) disbursements made in the ordinary course of business in the capacity
of trustee under an indenture, transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of this
Section 8.13.
(c) For the purposes of this Section 8.13:
(1) The term "default" shall mean any failure to make payment in full of
the principal of or interest upon one of the Securities of any series or upon
the other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" shall mean securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) of this Section 8.13, and (C) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to,
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possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security; provided that the security is received by
the Trustee simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. (a) Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount at Stated Maturity of the Securities of any or all series may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (A) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (B) by the record of the Holders of Securities voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article Ten, or (C) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
(b) If the Company shall solicit from the Holders of any or all series any
request, demand, authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by or pursuant to resolution of the Board of
Directors fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other act may be given before or after the record date, but
only the Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities
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have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
Securities deemed to be outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
SECTION 9.02. Proof of Execution by Holders. Subject to the provisions of
Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a
Holder, his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities of
any series shall be proved by the registry books of the Company or by a
certificate of the registrar of the Securities of any series.
The record of any meeting of Holders of Securities may be proved in the
manner provided in Section 10.06.
SECTION 9.03. Who Deemed Absolute Owners. The Company, the Trustee, any
paying agent, any transfer agent and any Security registrar may treat the Holder
of any Unregistered Security and the Holder of any coupon, except with respect
to a Fully Registered Security, whether or not the Security to which it
appertained be registered, 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 (whether or not such Security or coupon shall be overdue) and neither
the Company, the Trustee, any paying agent, any transfer agent nor any Security
registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security registrar may
treat the person in whose name a Registered Security shall be registered upon
the registry books of the Company as the absolute owner of such Security
(whether or not such Security shall be overdue) for the purpose of receiving
payment of principal of, premium, if any, on and, if such Registered Security is
a Fully Registered Security, interest if any, on, such Registered Security and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any transfer agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his order shall be valid, and, to the extent of the sum or sums so
paid, effectual, to satisfy and discharge the liability for moneys payable upon
such Security.
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The amount of Unregistered Securities held by any Person executing any
instrument or writing as a Holder, and the numbers of such Unregistered
Securities, and the date of his holding the same, may be proved by the
production of such Securities or by a certificate executed by any trust company,
bank, banker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Holder, if such certificate or
affidavit is in form satisfactory to the Trustee. The Trustee and the Company
may assume that such ownership of any Unregistered Security continues until (i)
another certificate bearing a later date issued in respect of the same
Unregistered Security is produced, or (ii) such Unregistered Security is
produced by some other Person, or (iii) such Unregistered Security is registered
as to principal or is surrendered in exchange for a Fully Registered Security,
or (iv) such Unregistered Security has been cancelled in accordance with Section
2.08.
SECTION 9.04. Company-Owned Securities Disregarded. In determining whether
the Holders of the requisite aggregate principal amount at Stated Maturity of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on
such Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction or consent only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 9.04 if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 9.05. Revocation of Consents; Future Holders Bound. (a) At any time
prior to but not after, the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount at Stated Maturity of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such action, any
Holder of a Security the number, letter or other distinguishing symbol of which
is shown by the evidence to be included in the Securities the Holders of which
have consented to such action may, by filing written notice with the Trustee at
the Principal Office of the Trustee and upon proof of holding as provided in
Section 9.02, revoke such action so far as concerns such Holder and all future
Holders and owners of such Security and any Securities which may be issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Security or such other Security issued in
exchange or substitution therefor.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action by 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
any action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities
of any or all series may be called at any time and from time to time pursuant to
the provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Eight;
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(3) to consent to the execution of an indenture or supplemental hereto
pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount at Stated Maturity of the
Securities of any or all series, as the case may be, under any other provisions
of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 10.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities of any or all 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 mailed to Holders of
Registered Securities of each series affected, at their addresses as they appear
on the registry books of the Company, and notice to Holders of Unregistered
Securities of each series affected shall be published in an Authorized Newspaper
in the Place of Payment. Such notice shall be mailed or published, as the case
may be, not less than 20 nor more than 90 days prior to the date fixed for the
meeting. However, if all Securities of any series with respect to which the
meeting is to be held are Registered Securities no notice need be given except
notice by mail as hereinabove provided.
Failure to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders
of Securities of any or all series, as the case may be, shall be valid without
notice if the Holders of all such Securities outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at any time
the Company, pursuant to a resolution of its Board of Directors, or the Holders
of at least 10% in aggregate principal amount at Stated Maturity of the
Securities then outstanding of any or all series, as the case may be, that may
be affected by the action proposed to be taken at the meeting, shall have
requested the Trustee to call a meeting of Holders of Securities of any or all
series, as the case may be, that may be so affected by written request setting
forth in a reasonable detail the action proposed to be taken at the
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meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Holders, in the
amount specified, may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 10.01, by mailing notice thereof as provided in Section
10.02.
SECTION 10.04. Qualification for Voting. To be entitled to vote at any
meeting of Holders of Securities, a Person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by such a Holder. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any or all series, as the case may be, shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem fit.
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 10.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount at Stated Maturity of the Securities represented at the
meeting.
Subject to the provisions of Section 9.04, at any meeting each Holder of
Securities with respect to which such meeting is being held, or proxy therefor,
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of "Securities") of such Securities
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held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any such 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 other than as a Holder of
Securities or proxy therefor. At any meeting of Holders of Securities, the
presence of Persons holding or representing the Securities with respect to which
such meeting is being held in such aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall constitute a quorum, but, if less than a quorum is present, the Persons
holding or representing a majority in such aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present. Any
meeting of Holders of Securities with respect to which such meeting is being
held duly called pursuant to the provisions of Section 10.02 or 10.03 may be
adjourned from time to time by vote of the Holders of a majority in such
aggregate principal amount of the Securities represented at the meeting and
entitled to vote, and the meeting may be held as so adjourned without further
notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be inscribed the signatures of
the Holders or of their representatives by proxy and the serial number or
numbers of the Securities 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 in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said 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 said notice was mailed as provided in Section 10.02. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by
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the Trustee. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this Article Ten
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders of Securities or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
of Securities under any of the provisions of this Indenture or of the
Securities.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indentures without Consent of Holders. Without
the consent of any Holders of any series of Securities, the Company, when
authorized by or pursuant to a resolution of the Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation,
pursuant to Article Twelve hereof, of the covenants, agreements and obligations
of the Company herein and in the Securities contained;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of any series of
Securities as the Board of Directors and the Trustee shall consider to be for
the protection of the Holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth, provided, however, that in respect of any
such additional covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default
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or may limit the remedies available to the Trustee upon such default and shall
not adversely affect the interests of the Holders of Securities of any series;
(c) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of any series, any property or assets which the
Company may desire or may be required to convey, transfer, assign, mortgage or
pledge in accordance with the provisions of Section 5.03 or Section 12.02;
(d) to establish the form or terms of Securities of any series as permitted
by Section 2.01;
(e) to cure any ambiguity, to correct or supplement any provision contained
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision contained herein or in any supplemental indenture, or
to make such other provisions in regard to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided however, such action shall not adversely affect the
interests of the Holders of Securities of any series; or
(f) 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 8.11; or
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 11.02.
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SECTION 11.02. Supplemental Indentures with Consent of Holders of a Series.
With the consent (evidenced as provided in Section 9.01) of the Holders of not
less than 50% in aggregate principal amount at Stated Maturity of the Securities
at the time outstanding of each series affected by such supplemental indenture
or indentures, the Company, when authorized by or pursuant to a resolution of
the Board of Directors, and the Trustee may from time to time and at any time
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 any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series under
this Indenture; provided, however, that no such supplemental indenture shall
without the consent of the Holder of each outstanding Security affected thereby
(i) extend the fixed maturity of any Security, or reduce the rate of interest or
extend the time of payment of interest, if any, thereon or reduce the principal
thereof or the time during which premium is payable on or make the principal
thereof or any premium or any interest thereon payable in any coin or currency
other than that provided in such Securities, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 7.01 or the
amount thereof provable in bankruptcy pursuant to Section 7.02 without the
consent of the Holder of each Security so affected, or (ii) reduce the
percentage in principal amount at Stated Maturity of the 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 hereof or of certain defaults hereunder and their
consequences provided for in this Indenture. A supplemental indenture which
changes or eliminates any covenant or other provision of this indenture which
has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the
Board of Directors certified by its Secretary or Assistant Secretary authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Holders of such
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series as aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eleven shall comply with the Trust Indenture Act of 1939, as then
in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Holders of the series of Securities affected
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 11.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
8.02, shall be entitled to receive and shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel as conclusive
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evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Eleven.
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 12.02, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent any
sale or conveyance of all or substantially all the property of the Company, to
any other corporation (whether or not affiliated with the Company) authorized to
acquire and operate the same; provided, however, and the Company hereby
covenants and agrees, that upon any such consolidation, merger, sale or
conveyance, other than a consolidation or merger in which the Company is the
continuing corporation, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture and in such series to be performed by
the Company, shall be expressly assumed, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee by the corporation
(if other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property.
SECTION 12.02. Securities to be Secured in Certain Events. If, upon any
consolidation or merger of the Company with or into any other corporation, or
upon any sale or conveyance of all or substantially all the property of the
Company to any other corporation, any of the property of the Company or of any
Restricted Subsidiary would thereupon become subject to any mortgage, lien or
pledge, the Company, prior to or simultaneously with such consolidation, merger,
sale or conveyance, will secure the Securities of each series outstanding
hereunder, equally and ratably with any other obligations of the Company or any
Restricted Subsidiary then entitled thereto, by a
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direct lien on all such property prior to all liens other than any theretofore
existing thereon.
SECTION 12.03. Successor Corporation to be Substituted, In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest, if any, on all of the
Securities of each series and the due and punctual performance of all of the
covenants and conditions of this Indenture and in such series to be performed by
the Company, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein and, if the
Company is to be voluntarily dissolved, the Company shall thereupon be released
from all obligations hereunder and under the Securities of each series. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of Atlantic Richfield Company any or all of the
Securities of each series issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the other Securities of such series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
SECTION 12.04. Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 8.01 and 8.02, shall be entitled to receive and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article.
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ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities of any series not theretofore cancelled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds (other than funds repaid by the Trustee to the Company
in accordance with Section 13.04) sufficient to pay at maturity or upon
redemption all of the Securities of such series (other than any Securities of
such series which shall have been mutilated, destroyed, lost or stolen and in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered or which shall have been paid) not theretofore
cancelled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest, if any, due or to become due to such date of
maturity or redemption date, as the case may be, and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect with
respect to Securities of such series, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 15.07 and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture with
respect to Securities of such series, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
property incurred and to compensate the Trustee for any services reasonably and
properly rendered by the Trustee in connection with this Indenture or the
Securities.
SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee. All moneys
deposited with the Trustee pursuant to Section 13.01 shall be held in trust and
applied by it to the payment, either directly or through any paying
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agent (including the Company if acting as its own paying agent), to the Holders
of the particular Securities for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest and premium, if any.
SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture, all moneys then held by any paying agent of the
Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of (and premium, if any) or
interest, if any, on Securities of any series and not applied but remaining
unclaimed by the Holders of Securities of that series for three years after the
date upon which the principal of, and premium, if any, or interest, if any, on
such Securities, as the case may be, shall have become due and payable, shall,
upon written demand, be repaid to the Company by the Trustee; and the Holder of
any of such Securities shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect, provided, however, that, before
being required to make any such repayment, the Trustee may (at the cost of the
Company) mail to such Holders at their last known address or cause to be
published once a week for two successive weeks, in each case on any day of the
week, in an Authorized Newspaper in the Place of Payment, a notice (in such form
as may be deemed appropriate by the Trustee) that said moneys remain unclaimed
and that, after a date named therein, any unclaimed balance of said moneys then
remaining will be returned to the Company (except that with respect to
presentation of Securities for payment and transfer, such term shall mean the
office or agency of the Trustee in said city at which at any particular time its
corporate agency business shall be conducted).
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or
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interest, if any, on any Security, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions, Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders.
Nothing in this Indenture or in the Securities, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and assigns and the Holders, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; and, subject to the
provisions of Articles Nine and Fourteen, all of such covenants, conditions and
provisions shall be for the sole benefit of the parties hereto and the Holders.
SECTION 15.03. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 15.04. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or
<PAGE> 87
79
served by the Trustee or by the Holders of Securities on the Company shall be
deemed to have been sufficiently given or served, for all purposes, if given or
served at the office of the Treasurer at the principal office of the Company at
515 South Flower Street, Los Angeles, California 90071 (until another address is
filed by the Company with the Trustee). Any notice, direction, request of demand
by any Holder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Principal
Office of the Trustee, addressed to the attention of its Corporate Trust
Division.
SECTION 15.05 Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, (1) if any of the
Securities affected by such event are Registered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class, postage prepaid, to each
Registered Holder of such Securities, at his address as it appears on the
registry books of the Company, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice and (2) if any
of the Securities affected by such event are Unregistered Securities, such
notice shall be sufficiently given (unless otherwise herein or in such
Securities expressly provided) if published once in an Authorized Newspaper in
the Place of Payment not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by mason of any other cause, it shall be impossible to make
publication of any notice in one or more Authorized Newspapers as required by
any Security or this Indenture, then such method of publication or notification
as shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
<PAGE> 88
80
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to the Holders of Securities when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee and the Company shall be deemed
to be a sufficient giving of such notice.
SECTION 15.06. New York Contract. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 15.07. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include ( 1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 15.08. Legal Holidays. In any case where the date of maturity of
interest on or principal of the Securities or the date fixed for redemption of
any Security will be a day on which banking institutions are authorized or
obligated by law to close in The City of New York, New York, then payment of
such interest and premium, if any, on or principal of the Securities need not be
made on such date but may be made on the next
<PAGE> 89
81
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption and no interest shall accrue for the period
from and after such date.
SECTION 15.09. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
SECTION 15.10. No Security Interest Created Nothing in this Indenture or in
the Securities, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction where property of
the Company or its Subsidiaries is located.
SECTION 15.11. Table of Contents, Headings, etc. The table of contents and
the titles and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.12. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.13. Acceptance of Trust. The Trustee hereby accepts the trusts
declared and provided in this Indenture, upon the terms and conditions
hereinabove set forth.
<PAGE> 90
82
IN WITNESS WHEREOF, ATLANTIC RICHFIELD COMPANY has caused this indenture to
be signed and acknowledged by its Chairman of the Board, its President, its
Executive Vice President and Chief Financial Officer or its Senior Vice
President and Treasurer, and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary or an Assistant Secretary, and THE BANK OF
NEW YORK has caused this Indenture to be signed and acknowledged by one of its
Vice Presidents or Assistant Vice Presidents, has caused its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, as of the day and year first written above.
ATLANTIC RICHFIELD COMPANY
(SEAL) By /s/ CAMRON COOPER
--------------------------------------
Senior Vice President and Treasurer
Attest:
/s/ DIANE A. WARD
- -----------------------------
Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
(SEAL) By /s/ WALTER N. GITLIN
-------------------------------------
Vice President
Attest
/s/ LOUIS J. HACK
- -----------------------------
Assistant Secretary
<PAGE> 91
83
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 3rd day of January, 1992, before me personally came CAMRON COOPER,
to me known, who, being by me duly sworn, did depose and say that she resides at
Pasadena, California; that she is Senior Vice President and Treasurer of
Atlantic Richfield Company, one of the corporations described in and which
executed the above instrument; that she knows the corporate seal of said
corporation; that the seal affixed to said instrument is said corporate seal;
that it was so affixed by the authority of the Board of Directors of said
corporation; and that she signed her name thereto by like authority.
/s/ ELLEN L. BUNDA
-------------------------------------
[Notary Public]
(Seal)
OFFICIAL SEAL
[CALIFORNIA ELLEN L. BUNDA
STATE Notary Public - California
SEAL] LOS ANGELES COUNTY
My Commission Expires
December 27, 1993
<PAGE> 92
84
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of January, 1992, before me personally came Walter N.
Gitlin, to me known, who, being by me duly sworn, did depose and say that he
resides at Staten Island, NY 10301, that he is a Vice President of The Bank of
New York, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the 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.
/s/ MARION PAPADOGONAS
-------------------------------------
[Notary Public]
(Seal)
MARION PAPADOGONAS
Notary Public, State of New York
No. 314842989
Qualified in New York County
Commission Expires May 31, 1993
<PAGE> 1
Exhibit 5
ARCO [LOGO] Legal
515 South Flower Street
Mailing Address: Box 2679-T.A.
Los Angeles, California 90051
Telephone (213) 486-2808
E-mail [email protected]
Diane A. Ward
Counsel - Securities and Finance
January 27, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: REGISTRATION STATEMENT OF FORM S-3
Ladies and Gentlemen:
I am familiar with all corporate and other proceedings taken by Atlantic
Richfield Company, a Delaware corporation ("ARCO"), in connection with the
authorization of its Debt Securities ("Securities") in an aggregate principal
amount of $1.5 billion.
I am of the opinion that the Securities have been duly authorized and, when the
securities have been executed and authenticated in the manner set forth in the
Indenture and issued and delivered in the manner set forth in the Indenture
against payment therefor, the Securities will have been validly executed,
authenticated, issued, and delivered, will constitute the legal, valid, and
binding obligations of ARCO, will (subject to applicable bankruptcy,
insolvency, and other laws affecting the enforceability of creditors' rights
generally and to general principles of equity) be enforceable as to ARCO in
accordance with their terms, and will be entitled to the benefits provided by
the Indenture.
I hereby consent to the references to me under the heading "Legal Opinion" in
the Prospectus to be filed as a part of the Registration Statement and to the
filing of this opinion or copies thereof as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ Diane A. Ward
Diane A. Ward
<PAGE> 1
EXHIBIT 12
ATLANTIC RICHFIELD COMPANY
STATEMENT SETTING FORTH DETAIL OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES -- UNAUDITED
(MILLIONS OF DOLLARS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-----------------------------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income (loss) from continuing operations before
income taxes and minority interest(1).............. $(1,282) $1,878 $2,086 $1,112 $ 740
Less: Undistributed income of less than
50% owned subsidiaries (net of
losses)(2)......................................... (20) 5 6 -- --
------ ------ ------ ------ ------
Fixed charges:
Interest expense charged to income,
interest of appropriate
unconsolidated subsidiaries, and
portion of rentals representative of
interest(3).................................... 493 522 615 702 712
Capitalized interest................................. 106 38 19 48 35
------ ------ ------ ------ ------
Total fixed charges.................................. 599 560 634 750 747
------ ------ ------ ------ ------
Earnings (deficit) (1) + (2) + (3)................... $(809) $2,405 $2,707 $1,814 $1,452
====== ====== ====== ====== ======
Ratio of earnings to fixed charges(a)................ (1.35) 4.29 4.27 2.42 1.94
====== ====== ====== ====== ======
</TABLE>
- ---------------
(a) In 1998, the negative ratio indicates a less than one-to-one earnings
coverage of fixed charges. Fixed charges of $599 million combined with an
earnings deficit of $809 million per the ratio of earnings to fixed charges
calculation resulted in a $1.4 billion deficiency in a one-to-one earnings
coverage of fixed charges in 1998. The deficiency includes a before tax net
charge of approximately $1.35 billion for asset writedowns, restructuring costs
and a tax refund in the fourth quarter of 1998.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Atlantic Richfield Company (the "Company") on Form S-3 (File No. 333-______) of
our report dated February 12, 1998, on our audits of the consolidated financial
statements and related financial statement schedule of Atlantic Richfield
Company as of December 31, 1997 and 1996 and for each of the three years in the
period ended December 31, 1997 included in the Company's Annual Report on Form
10-K for the year ended December 31, 1997. We also consent to the reference to
our firm under the caption "Experts" in the prospectus forming a part of this
registration statement.
PricewaterhouseCoopers LLP
Los Angeles, California
January 25, 1999
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
Each person signature appears below hereby constitutes and appoints Marie
L. Knowles, J. Kenneth Thompson, Donald R. Voelte, Jr., Michael E. Wiley, Bruce
G. Whitmore, Terry G. Dallas and Allan L. Comstock, and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, in connection with the issuance of any securities
authorized by the Board of Directors of Atlantic Richfield Company (the
"Company") or by the Executive Committee thereof pursuant to due authorization
by such Board for issuance by the Company, (1) to execute and file, or cause to
be filed, with the Securities and Exchange Commission (the "Commission"), (A)
Registration Statements and any and all amendments (including post-effective
amendments) thereto and to file, or cause to be filed, all exhibits thereto and
other documents in connection therewith as required by the Commission in
connection with such registration under the Securities Act of 1933, as amended,
and (B) any report or other document required to be filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended, (2)
to execute and file, or cause to be filed, any application for registration or
exemption therefrom, any report or any other document required to be filed by
the Company under the Blue Sky or securities laws of any of the United States,
and to furnish any other information required in connection therewith, (3) to
execute and file, or cause to be filed, any application for registration or
exemption therefrom under the securities laws of any jurisdiction outside the
United States, including any reports or other documents required to be filed
subsequent to the issuance of such securities, and (4) to execute and file, or
cause to be filed, any application for listing such securities on the New York
Stock Exchange, the Pacific Stock Exchange, the London Stock Exchange or any
other securities exchange in any other jurisdiction where any such securities
are proposed to be sold, granting to such attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act required
to be done as he or she might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, and each of them, may
lawfully do or cause to be done by virtue of this power of attorney. Each person
whose signature appears below may at any time revoke this power of attorney as
to himself or herself only by an instrument in writing specifying that this
power of attorney is revoked as to him or her as of the date of execution of
such instrument or at a subsequent specified date. This power of attorney shall
be revoked automatically with respect to any person whose signature appears
below effective on the date he or she ceases to be a member of the Board of
Directors or an officer of the Company. Any revocation hereof shall not void or
otherwise affect any acts performed by any attorney-in-fact and agent named
herein pursuant to this power of attorney prior to the effective date of such
revocation.
Dated as of January 25, 1999.
Signature Title
--------- -----
/s/ MIKE R. BOWLIN Chairman of the Board and
- ----------------------------------- Chief Executive Officer
Mike R. Bowlin
Principal executive officer
1
<PAGE> 2
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael E. Wiley President and
- --------------------------- Chief Operating Officer
Michael E. Wiley
/s/ Marie L. Knowles Executive Vice President and
- --------------------------- Chief Financial Officer
Marie L. Knowles
Principal financial officer
/s/ J. Kenneth Thompson Executive Vice President
- ---------------------------
J. Kenneth Thompson
/s/ Donald R. Voelte, Jr. Executive Vice President
- ---------------------------
Donald R. Voelte, Jr.
/s/ Frank D. Boren Director
- ---------------------------
Frank D. Boren
/s/ John Gavin Director
- --------------------------
John Gavin
/s/ Kent Kresa Director
- --------------------------
Kent Kresa
/s/ Arnold G. Langbo Director
- --------------------------
Arnold G. Langbo
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ David T. McLaughlin
- ---------------------------- Director
David T. McLaughlin
/s/ John B. Slaughter Director
- ----------------------------
John B. Slaughter
/s/ Gary L. Tooker Director
- ----------------------------
Gary L. Tooker
/s/ Henry Wendt Director
- ----------------------------
Henry Wendt
/s/ Gayle E. Wilson Director
- ----------------------------
Gayle E. Wilson
/s/ Allan L. Comstock Vice President and
- ---------------------------- Controller
Allan L. Comstock
Principal accounting officer
</TABLE>
<PAGE> 1
EXHIBIT 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
</TABLE>
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
ATLANTIC RICHFIELD COMPANY
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 23-0371610
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
515 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90071
(Address of principal executive offices) (Zip Code)
</TABLE>
--------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
--------------------------------------------
<PAGE> 2
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
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 as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 29TH day of DECEMBER, 1998.
THE CHASE MANHATTAN BANK
By /s/ Ronald J. Halleran
--------------------------
Ronald J. Halleran
Second Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
1998, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
------ -----------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .................................................. $ 11,951
Interest-bearing balances .......................................... 4,551
Securities: ............................................................
Held to maturity securities.............................................. 1,740
Available for sale securities............................................ 48,537
Federal funds sold and securities purchased under
agreements to resell ............................................... 29,730
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,379
Less: Allowance for loan and lease losses 2,719
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................. 124,660
Trading Assets .......................................................... 51,549
Premises and fixed assets (including capitalized
leases)............................................................. 3,009
Other real estate owned ................................................. 272
Investments in unconsolidated subsidiaries and
associated companies................................................ 300
Customers' liability to this bank on acceptances
outstanding ........................................................ 1,329
Intangible assets ....................................................... 1,429
Other assets ............................................................ 13,563
--------
TOTAL ASSETS ............................................................ $ 292,620
=========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices ................................................ $ 98,760
Noninterest-bearing .................................. $39,071
Interest-bearing ..................................... 59,689
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ............................................. 75,403
Noninterest-bearing .................................. $ 3,877
Interest-bearing ..................................... 71,526
Federal funds purchased and securities sold under agree-
ments to repurchase ..................................................... 34,471
Demand notes issued to the U.S. Treasury ................................ 1,000
Trading liabilities ..................................................... 41,589
Otherborrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ...................... 3,781
With a remaining maturity of more than one year .
through three years.......................................... 213
With a remaining maturity of more than three years.................. 104
Bank's liability on acceptances executed and outstanding................. 1,329
Subordinated notes and debentures ....................................... 5,408
Other liabilities ....................................................... 12,041
TOTAL LIABILITIES ....................................................... 274,099
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................ 0
Common stock ............................................................ 1,211
Surplus (exclude all surplus related to preferred stock)................ 10,441
Undivided profits and capital reserves .................................. 6,287
Net unrealized holding gains (losses)
on available-for-sale securities ........................................ 566
Cumulative foreign currency translation adjustments ..................... 16
TOTAL EQUITY CAPITAL .................................................... 18,521
---------
TOTAL LIABILITIES AND EQUITY CAPITAL .................................... $ 292,620
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
</TABLE>
----------
ATLANTIC RICHFIELD COMPANY
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 23-0371610
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
515 South Flower Street
Los Angeles, California 90071
(Address of principal executive offices) (Zip code)
</TABLE>
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 29th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE E. TRIMBOLI
-----------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
<PAGE> 4
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS Dollar Amounts
in Thousands
--------------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. $7,301,241
Interest-bearing balances.......................... 1,385,944
Securities:
Held-to-maturity securities........................ 1,000,737
Available-for-sale securities...................... 4,240,655
Federal funds sold and Securities purchased under 971,453
agreements to resell...............................
Loans and lease financing receivables:
Loans and leases, net of unearned
income............... 38,788.269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve........................0
Loans and leases, net of unearned income, 38,155,394
allowance, and reserve...........................
Assets held in trading accounts....................... 1,307,562
Premises and fixed assets (including capitalized 670,445
leases)............................................
Other real estate owned............................... 13,598
Investments in unconsolidated subsidiaries and 215,024
associated companies...............................
Customers' liability to this bank on acceptances 974,237
outstanding........................................
Intangible assets..................................... 1,102,625
Other assets.......................................... 1,944,777
-----------
Total assets.......................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices................................ $26,930,258
Noninterest-bearing......................11,579.390
Interest-bearing.........................15,350,868
In foreign offices, Edge and Agreement 16,117,854
subsidiaries, and IBFs...........................
Noninterest-bearing.........................187,464
Interest-bearing.........................15,930,390
Federal funds purchased and Securities sold under 2,170,238
agreements to repurchase...........................
Demand notes issued to the U.S.Treasury............... 300,000
Trading liabilities................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less........ 2,549,479
With remaining maturity of more than one year 0
through three years..............................
With remaining maturity of more than three years... 46,654
Bank's liability on acceptances executed and 983,398
outstanding........................................
Subordinated notes and debentures..................... 1,314,000
Other liabilities..................................... 2,295,520
-----------
Total liabilities..................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock.......................................... 1,135,284
Surplus............................................... 731,319
Undivided profits and capital reserves................ 3,385,227
Net unrealized holding gains (losses) on 51,233
available-for-sale securities......................
Cumulative foreign currency translation adjustments... ( 37,639)
-----------
Total equity capital.................................. 5,265,424
-----------
Total liabilities and equity capital.................. $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot
Thomas A. Renyi - Directors
Alan R. Griffith
-
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 99
FORM OF INDEMNITY AGREEMENT
This Indemnity Agreement is made this day of by and between
Atlantic Richfield Company, a Delaware corporation ("ARCO"), and ("Indemnitee").
RECITALS
Section 25 of ARCO's By-Laws provides that ARCO shall indemnify the
Indemnitee to the fullest extent authorized by the General Corporation Law of
Delaware, as the same exists or may hereafter be amended. The By-Laws (Section
25(e)) also provide that ARCO may from time to time enter into indemnity
agreements with the persons who are members of its Board of Directors and with
such officers and other persons as the Board may designate, such indemnity
agreements to provide in substance that ARCO will indemnify such person to the
fullest extent of the provisions of the By-Laws. The General Corporation Law of
Delaware (Section 145(f)) also provides that the indemnification authorized by
that Law shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled by law,
agreement or otherwise and ARCO's By-Laws (Section 25(c)) likewise provide that
the right to indemnification and the payment of expenses confirmed by the By-Law
shall not be exclusive of any other right which any person may have or hereafter
acquire under any agreement or otherwise.
In exercising its discretion to authorize this Agreement, the Board of
Directors has considered the following, among other factors:
(a) It is essential to ARCO to attract and retain as directors and
officers the most capable persons available.
(b) The substantial increase in corporate litigation that may subject
directors and officers to litigation costs and risks and the recent limitations
on the availability of directors' and officers' liability insurance have made
and will make it increasingly difficult for ARCO to attract and retain such
persons.
(c) When obtainable, insurance policies relating to indemnification
are often subject to retentions by the insured, co-insurance requirements,
exclusions and other limitations on coverage.
In view of the foregoing and in recognition of the Indemnitee's need for
substantial protection against personal liability in order to assure the
Indemnitee's continued service to ARCO in an effective manner and the
Indemnitee's reliance on the provisions of ARCO's By-Laws, and in part to
provide the Indemnitee with specific contractual assurance that the protection
promised by the By-Laws will be available to the Indemnitee (regardless of,
among other things, any amendment to or revocation of such By-Laws or any change
in the composition of ARCO's Board of Directors or any acquisition transaction
relating to ARCO). ARCO wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to the Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of the Indemnitee under ARCO's directors' and officers' liability
insurance policies.
1
<PAGE> 2
A G R E E M E N T
In consideration of Indemnitee's continued service to ARCO, ARCO hereby
agrees with the Indemnitee as follows:
Section 1. DEFINITIONS.
a. Change in Control: shall be deemed to have occurred if (i) any
"person" (as defined in Sections 3(a)(9) and 13(d)(3) of the Securities
Exchange Act of 1934, as amended) is or becomes the beneficial owner, directly
or indirectly, of securities of ARCO representing 25% or more of the total
voting power represented by ARCO's then outstanding Voting Securities, or (ii)
there shall occur a change in the composition of a majority of the Board of
Directors of ARCO within a three-year period which change shall not have been
approved by a majority of the persons then surviving as Directors who also
comprised the Board of Directors of ARCO immediately prior to the commencement
of such period, or (iii) the stockholders of ARCO approve a merger or
consolidation of ARCO with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of ARCO outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of ARCO or such surviving entity outstanding immediately after such
merger or consolidation, or (iv) the stockholders of ARCO approve a plan of
complete liquidation of ARCO or an agreement for the sale or disposition by
ARCO (in one transaction or a series of transactions) of all or substantially
all of ARCO's assets.
b. Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation that the Indemnitee in good faith
believes might lead to the institution of any such action, suit or proceeding,
whether civil, criminal, administrative, investigative or other.
c. Potential Change in Control: shall be deemed to have occurred if (i)
ARCO enters into an agreement or arrangement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any person (including
ARCO) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control; (iii) any person,
other than a trustee or other fiduciary, holding securities under an employee
benefit plan of ARCO acting in such capacity, or a corporation owned, directly
or indirectly, by the stockholders of ARCO in substantially the same
proportions as their ownership of stock of ARCO, who is or becomes the
beneficial owner, directly or indirectly, of securities of ARCO representing
10% or more of the combined voting power of ARCO's then outstanding Voting
Securities, increases such person's beneficial ownership of such securities by
5% or more over the percentage so owned by such person on the date hereof; or
(iv) the Board of Directors adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
d. Reviewing Party: the Senior Vice President and General Counsel or
any appropriate person or body selected by ARCO's Board of Directors who is not
a party to the particular Claim for which the Indemnitee is seeking
indemnification, and, if there has been a Change in Control (other than a
Change in Control which has been approved by a majority of persons then
surviving as Directors who comprised ARCO's Board of Directors immediately
prior to such Change in Control), the Reviewing Party shall be the special
independent counsel referred to in Section 5 of this Agreement.
e. Voting Securities: any securities of ARCO having the right under
ordinary circumstances to vote at an election of the Board of Directors.
2
<PAGE> 3
Section 2. GENERAL RIGHT TO INDEMNIFICATION. Subject to Sections 3 and 4d,
ARCO shall indemnify the Indemnitee in the event that Indemnitee was or is a
party or is threatened to be made a party to or is involved or is threatened to
be involved (as a witness or otherwise) in or otherwise required representation
by counsel in connection with any Claim, by reason of the fact that Indemnitee
is or was a director or officer of ARCO or is or was serving at the request of
ARCO as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, and the basis of such Claim is alleged
action or inaction in an official capacity or in any other capacity while
serving as such a director, officer, employee or agent, and Indemnitee shall be
indemnified and held harmless by ARCO to the fullest extent permitted by the
General Corporation Law of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment with reference to events
occurring prior to the effective date thereof, only to the extent that such
amendment permits ARCO to provide broader indemnification rights than such law
permitted ARCO to provide prior to such amendment), against all costs, charges,
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to the Indemnitee when the Indemnitee has
ceased to be a director or officer (or to serve another entity at the request
of ARCO) and shall inure to the benefit of the Indemnitee's heirs, personal
representative and estate.
Section 3. REVIEWING PARTY. Notwithstanding the foregoing, the obligation
of ARCO under Section 2 of this Agreement shall be subject to the condition
that the Reviewing Party shall not have determined (in a written opinion, in
any case in which the special, independent counsel referred to in Section 5 of
this Agreement is involved) that the Indemnitee would not be permitted to be
indemnified under applicable law.
Section 4. RIGHT OF INDEMNITEE TO BRING SUIT. The rights of the Indemnitee
to bring suit against ARCO under this Agreement include the following:
a. If there has been no determination by the Reviewing Party or if the
Reviewing Party determines that the Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, the
Indemnitee shall have the right to bring suit seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, and ARCO hereby consents to service
of process and to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on ARCO and the
Indemnitee.
b. If a claim for advances under Section 7 is not paid in full by ARCO
within sixty days after a written claim has been received by ARCO, the
Indemnitee may at any time thereafter bring suit against ARCO to recover
the unpaid amount. If successful in whole or in part, the Indemnitee shall
be entitled to be paid also the expense of prosecuting such claim.
c. In any action brought by the Indemnitee to enforce a right to
indemnification hereunder, or by ARCO to recover payments by ARCO of
expenses incurred by the Indemnitee in connection with a Claim in advance
of its final disposition, the burden of proving that the Indemnitee is not
entitled to be indemnified under this Section or otherwise shall be on
ARCO. Neither the failure of ARCO (including its Board of Directors,
independent legal counsel, other Reviewing Party or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the Indemnitee is proper in the circumstances because
the Indemnitee has met the applicable standard of conduct set forth in the
General Corporation Law of Delaware, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, other
Reviewing Party or its stockholders) that the Indemnitee has not met
3
<PAGE> 4
such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in the case of
such an action brought by the Indemnitee, be a defense to the action.
d. Notwithstanding any provisions to the contrary and except as provided in
this Section, ARCO shall indemnify the Indemnitee in connection with a
proceeding (or part thereof) initiated by the Indemnitee against ARCO only if
such proceeding (or part thereof) was authorized prior to its initiation by a
majority of the disinterested members of the Board of Directors of ARCO. The
rights to indemnification confirmed by this paragraph shall include the right to
be paid by ARCO any expenses incurred in defending such proceeding in advance of
its final disposition.
Section 5. CHANGE IN CONTROL. ARCO agrees that if there is a Change in
Control of ARCO (other than a Change in Control which has been approved by a
majority of the persons surviving as Directors who comprised ARCO's Board of
Directors immediately prior to such Change in Control) then with respect to all
matters thereafter arising concerning the rights of the Indemnitee to indemnity
payments and advances under this Agreement, ARCO shall seek legal advice only
from special, independent counsel selected by the Indemnitee and approved by
ARCO (which approval shall not be unreasonably withheld), and who has not
otherwise performed services within the last 5 years for ARCO or any "person"
referred to in clause (i) of Section 1a hereof or "other corporation" referred
to in clause (iii) of that Section (other than in connection with such matters)
or for the Indemnitee. Such counsel, among other things, shall render its
written opinion to ARCO and the Indemnitee as to whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable law. ARCO
agrees to provide full cooperation to and to pay the reasonable fees of the
special, independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
Section 6. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Agreement, to the extent
that the Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of
any Claim covered by this Agreement, or in defense of any claim, issue or
matter therein, the Indemnitee shall be indemnified against all costs, charges
and expenses, including attorneys' fees, actually and reasonably incurred by
the Indemnitee or on Indemnitee's behalf in connection therewith.
Section 7. ADVANCES. Expenses incurred by the Indemnitee in defending any
Claim, including attorneys' fees, judgments, fines and amounts paid in
settlements shall be paid by ARCO in advance of the final disposition of the
Claim, provided, however, that if the General Corporation Law of Delaware
requires, payment shall be made to or on behalf of the Indemnitee only upon
delivery to ARCO of an undertaking, by or on behalf of the Indemnitee, to repay
all amounts so advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by ARCO under Delaware law.
Section 8. PROCEDURE FOR INDEMNIFICATION. After the final disposition of
any Claim covered by this Agreement, the Indemnitee shall send to ARCO a
written request for any indemnification sought under this Agreement. No later
than 30 days following receipt by ARCO of such request, ARCO shall deliver such
request to an appropriate Reviewing Party for its review pursuant to this
Agreement and shall cause the indemnification provided hereunder to be
authorized and paid, so long as during such 30-day period, the Reviewing Party
has not determined that indemnification would not be permitted under applicable
law. The Indemnitee and Indemnitee's counsel shall be given an opportunity to
be heard and to present evidence on the Indemnitee's behalf in connection with
consideration by the Reviewing Party.
4
<PAGE> 5
Section 9. ESTABLISHMENT OF TRUST. In the event of a Potential Change in
Control, ARCO shall, upon written request by the indemnitee, create a trust for
the benefit of the Indemnitee and from time to time upon written request of the
Indemnitee shall fund such trust in an amount sufficient to satisfy any and all
expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Claim, and
any and all judgments, fines, penalties and settlement amounts of any and all
Claims covered by this Agreement, from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid. The terms of the trust shall
provide that upon a Change in Control (A) the trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee, (B)
the trustee shall advance within two business days of a request by the
Indemnitee any and all expenses to the Indemnitee (and the Indemnitee hereby
agrees to reimburse the trust under the circumstances under which the
Indemnitee would be required to reimburse ARCO under Section 2 of this
Agreement), (C) the trust shall continue to be funded by ARCO in accordance
with the funding obligation set forth above, (D) the trustee shall promptly pay
to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (E) all unexpended
funds in such trust shall revert to ARCO upon a final determination, by a court
of competent jurisdiction, that the Indemnitee has been fully indemnified under
the terms of this Agreement. The trustee shall be chosen by the Indemnitee.
Nothing in this Section 9 shall relieve ARCO of any of its obligations under
this Agreement.
Section 10. INSURANCE. To the extent ARCO maintains an insurance policy or
policies providing directors' and officers' liability insurance, the Indemnitee
shall be covered by such policy or policies, in accordance with its or their
terms, to the maximum extent of the coverage available for ARCO's directors or
officers.
Section 11. NOTICE TO COMPANY. The Indemnitee must provide prompt written
notice to ARCO of any Claim in connection with which the Indemnitee may assert
a right to be indemnified hereunder; however, failure to provide such notice
shall not be construed as a waiver of any right of the Indemnitee to an advance
or indemnification hereunder.
Section 12. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification and advances provided by this Agreement shall not be deemed
exclusive of any other rights to which the Indemnitee seeking indemnification
may be entitled under any law (common or statutory), provision of ARCO's
Certificate of Incorporation or By-Laws, vote of stockholders or disinterested
directors, or otherwise, both as to action in the Indemnitee's official
capacity and as to action in another capacity while holding office or while
employed by or acting as agent for ARCO, and shall continue as to a person who
has ceased to be a director or officer, and shall inure to the benefit of the
estate, heirs, executors and administrators of the Indemnitee.
Section 13. SUBROGATION. In the event of payment under this Agreement,
ARCO shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable ARCO effectively to bring suit to enforce
such rights.
Section 14. NO DUPLICATION OF PAYMENTS. ARCO shall not be liable under
this Agreement to make any payment in connection with any claim made against
the Indemnitee to the extent the Indemnitee has otherwise actually received
payment (under any insurance policy or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 15. AMENDMENTS. This Agreement may not be amended without the
agreement in writing of ARCO and the Indemnitee.
Section 16. SAVINGS CLAUSE. If this Agreement or any portion hereof shall
be deemed invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby,
5
<PAGE> 6
and ARCO shall nevertheless indemnify the Indemnitee as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any Claim to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and to
the full extent permitted by applicable law.
Section 17. SURVIVAL CLAUSE. ARCO acknowledges that in continuing to
provide services to ARCO, the Indemnitee is relying on this Agreement.
Accordingly, ARCO agrees that its obligations hereunder will survive (A) any
actual or purported termination of this Agreement by ARCO or its successors or
assigns whether by operation of law or otherwise, and (B) termination of the
Indemnitee's services to ARCO, whether such services were terminated by ARCO or
the Indemnitee, with respect to any Claim, whether or not such Claim is made,
threatened or commenced before or after the actual purported termination of this
Agreement or the termination of the Indemnitee's services to ARCO.
Section 18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of ARCO, spouses, heirs, and personal and legal
representatives. ARCO shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all, substantially
all of the business and/or assets of ARCO, by written agreement in form and
substance satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that ARCO would
be required to perform if no such succession had taken place.
Section 19. GOVERNING LAW. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Delaware (without giving effect to the provisions thereof relating to
conflicts of law).
IN WITNESS WHEREOF, this Agreement has been executed by the parties
thereto, and in the case of ARCO, by a duly authorized officer thereof on its
behalf.
ATLANTIC RICHFIELD COMPANY
By:
----------------------------
Attest:
- --------------------------------
Corporate Secretary
--------------------------------
Indemnitee
6
