<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1996
REGISTRATION NO. 33-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
LYONDELL PETROCHEMICAL COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 95-4160558
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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1221 MCKINNEY STREET
SUITE 1600, HOUSTON, TEXAS 77002
(713) 652-7200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
KERRY A. GALVIN
LYONDELL PETROCHEMICAL COMPANY
1221 MCKINNEY STREET,
SUITE 1600
HOUSTON, TEXAS 77002
(713) 652-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
WITH COPIES TO:
JOHN W. WHITE, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1732
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities.......... $300,000,000(2) 100% $300,000,000 $103,449
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</TABLE>
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(1) Estimated solely for purpose of computing the registration fee.
(2) The aggregate amount registered reflects the offering price rather than the
principal amount of any Debt Securities issued at a discount.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 31, 1996
PROSPECTUS
[LOGO OF LYONDELL PETROCHEMICAL APPEARS HERE]
DEBT SECURITIES
-----------
Lyondell Petrochemical Company ("Lyondell" or the "Company") may offer and
issue from time to time debt securities (the "Debt Securities") with an
aggregate initial offering price of $300,000,000 (or the equivalent thereof in
one or more foreign currencies or composite currencies). The Debt Securities
may be sold for U.S. dollars or one or more foreign or composite currencies,
and the principal of and any interest on the Debt Securities may likewise be
payable in U.S. dollars or one or more foreign or composite currencies.
The Debt Securities will be offered to the public on terms determined by
market conditions at the time of sale. The Debt Securities may be issued in one
or more series with the same or various maturities at par or a premium or with
an original issue discount. The specific designation, aggregate principal
amount, currency, purchase price, maturity, rate or method of calculation of
interest and time of payment thereof, whether such Debt Securities are to be
issued in book-entry form, redemption, pre-payment or sinking fund provisions,
any other specific terms, and any listing on a securities exchange of Debt
Securities in respect of which this Prospectus is being delivered (the "Offered
Debt Securities") will be set forth in an accompanying prospectus supplement
(the "Prospectus Supplement") together with the terms of offering of the
Offered Debt Securities.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The Debt Securities may be sold directly by the Company, through agents
designated from time to time, through underwriting syndicates represented by
managing underwriters, by underwriters without a syndicate, or by dealers. See
"Plan of Distribution". If any agents of the Company or any underwriters are
involved in the sale of the Offered Debt Securities, the names of such agents
or underwriters and any applicable commissions or discounts will be set forth
in the Prospectus Supplement. The net proceeds to the Company from such sale
also will be set forth in the Prospectus Supplement.
-----------
The date of this Prospectus is , 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission may
be inspected and copied at the Public Reference Section of the Commission at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Chicago Regional Office, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and New York Regional
Office, Seven World Trade Center, New York, New York 10048. Copies of such
material may also be obtained from the Public Reference Section of the
Commission at its principal office at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. Certain Securities of the Company
are listed on the New York Stock Exchange. The Company's registration
statements, reports, proxy statements and other information may also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus, which constitutes a part of a registration statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), omits
certain of the information set forth in the Registration Statement. Reference
is hereby made to the Registration Statement and to the exhibits thereto for
further information with respect to the Company and the securities offered
hereby. Statements contained herein concerning the provisions of such documents
are necessarily summaries of such documents, and each such statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the Commission.
The Company is incorporated in Delaware, and its principal executive offices
are located at 1221 McKinney Street, Suite 1600, Houston, Texas 77002
(telephone: (713) 652-7200).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by this reference the following documents
filed pursuant to the Exchange Act (File No. 1-10145), which also have been
filed with the Commission:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1994.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1995, June 30, 1995 and September 30, 1995.
(c) The Company's Current Reports on Form 8-K dated May 1, 1995, (as
amended by Form 8-K/A dated June 26, 1995), December 8, 1995 and January
31, 1996.
(d) The Company's Registration Statement on Form 8-A dated December 8,
1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein or in any
other subsequently filed incorporated document or in any accompanying
prospectus supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Copies of all documents incorporated herein by reference other than exhibits
to such documents (unless such exhibits are specifically incorporated by
reference) will be provided without charge to each person who receives a copy
of this Prospectus upon request to the Company, 1221 McKinney Street, Suite
1600, Houston, Texas 77002, Attention: Assistant Secretary (telephone: (713)
652-7200).
<PAGE>
LYONDELL PETROCHEMICAL COMPANY
COMPANY OVERVIEW
Lyondell is a leading manufacturer and marketer of petrochemicals and,
through its interest in LYONDELL-CITGO Refining Company Ltd. ("LCR"), of
refined petroleum products. The Company's corporate headquarters and
manufacturing facilities are located in the Houston, Texas area.
The Company produces a wide variety of petrochemicals, including olefins
(primarily ethylene, propylene and butadiene), polyolefins (high-density
polyethylene, low density polyethylene and polypropylene), methanol, MTBE
(methyl tertiary butyl ether) and aromatics. Lyondell's petrochemical products
are used in the manufacture of other chemicals and products which in turn are
used in the production of a wide variety of consumer and industrial products.
The Company's refining business is conducted through its approximate 90
percent interest in LCR, which operates the eighth largest refinery in the
United States (the "Refinery"). LCR sells substantially all of the gasoline,
jet fuel and heating oil it produces to CITGO Petroleum Corporation ("CITGO"),
which currently has an approximate 10 percent interest in LCR. In turn, LCR has
a long-term crude oil supply contract with Lagoven, an affiliate of PDVSA, the
National Oil Company of Venezuela. Both CITGO and Lagoven are subsidiaries of
PDVSA. LCR is currently undertaking an upgrade project at the Refinery. The
cost estimate for the upgrade project, previously estimated at $980 million, is
currently undergoing further study and could be increased. The revised cost
estimate will depend on a number of factors, including the impact of scheduling
decisions. Any increase is expected to be less than 10%. If total spending on
the upgrade project exceeds $1 billion, Lyondell expects to fund one-half of
these additional costs. LCR also produces fuel oil and aromatics, as well as
lubricants for the transportation, oil drilling and food processing industries.
Lyondell was originally created by Atlantic Richfield Corporation ("ARCO") as
a separate division (the "Lyondell Division") in 1985 through the combination
of certain of the operations of its petrochemical complex in Channelview, Texas
and the Refinery. Effective July 1, 1988, ARCO transferred substantially all
the assets and liabilities relating to the integrated petrochemical and
petroleum processing business of the Lyondell Division to a wholly-owned
subsidiary incorporated under the laws of the state of Delaware. In February
1990, the Company acquired a polypropylene plant and a low density polyethylene
plant located in Pasadena, Texas. On July 1, 1993, the Company and CITGO
announced the commencement of operations of LCR, a new entity formed and owned
by the Company and CITGO in order to own, operate and upgrade the Company's
refining business. In May 1995, the Company acquired Occidental Chemical
Corporation's Alathon high-density polyethylene ("HDPE") business. Assets
involved in this acquisition included resin production facilities in Matagorda
and Victoria, Texas, related research and development activities and the rights
to the Alathon trademark.
In exchange for the initial transfer of petrochemical and refining assets and
liabilities in 1988, Lyondell issued ARCO additional shares of its Common
Stock, bringing ARCO's stock ownership to 80,000,000 shares, which represented
all of the then outstanding Common Stock. In January 1989, ARCO completed an
initial public offering of shares of Lyondell's Common Stock, and ARCO
currently owns 39,921,400 shares, or 49.9 percent of the outstanding shares. In
August 1994, ARCO completed an offering of three-year debt securities
("Exchangeable Notes") exchangeable pursuant to the terms of the Exchangeable
Notes upon maturity, at ARCO's option, into Lyondell Common Stock or cash with
an equal value. If ARCO elects to deliver shares of Lyondell Common Stock at
the maturity of the Exchangeable Notes, ARCO's equity interest in Lyondell will
be substantially reduced or eliminated, depending on the price of Lyondell
Common Stock at such time
3
<PAGE>
USE OF PROCEEDS
Proceeds to be received from the sale of the Debt Securities offered hereby
will be used, together with internally generated funds, for general corporate
purposes, including capital expenditures and retirement of maturing debt. Any
specific allocation of the proceeds to a particular purpose that has been made
as of the date of any Prospectus Supplement will be described therein. If
additional funds are required, they may be provided out of the Company's cash
resources or from the proceeds of the sale of other securities or other
borrowings. Pending ultimate application, the proceeds from the sale of the
Debt Securities will be used to reduce short-term debt or will be invested in
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for the five years ended December 31, 1995:
YEAR ENDED DECEMBER 31
-----------------------------
<TABLE>
<S> <C> <C> <C> <C>
1995 1994 1993 1992 1991
6.8 4.8 1.2 1.4 5.0
</TABLE>
For the purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and cumulative effect of
accounting changes plus fixed charges (excluding capitalized interest). "Fixed
charges" include interest expense, capitalized interest, amortization of debt
issuance costs and a portion of operating lease rent expense deemed to be
representative of interest.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations issued under an indenture
dated as of January 29, 1996 (the "1996 Indenture") between Lyondell and Texas
Commerce Bank National Association, as Trustee. A copy of the 1996 Indenture is
an exhibit to the Registration Statement of which this Prospectus forms a part.
The following statements are subject to the detailed provisions of the 1996
Indenture. Wherever particular provisions of the 1996 Indenture or terms
defined therein are referred to herein or in the Prospectus Supplement, such
provisions or terms are incorporated by reference as a part of the statements
made, and the statements are qualified in their entirety by such reference.
References in italics are to the 1996 Indenture. Capitalized terms not
otherwise defined herein shall have the meanings given to them in the 1996
Indenture.
GENERAL
The Debt Securities will rank on a parity with all other unsecured and
unsubordinated debt of the Company. The 1996 Indenture does not limit the
amount of debt, either secured or unsecured, which may be issued by the Company
under the 1996 Indenture or otherwise.
Debt Securities may be issued from time to time from which the Company may
receive up to an aggregate of $300,000,000 of proceeds and which will be
offered to the public on terms determined by market conditions at the time of
sale. The Debt Securities may be issued in one or more series with the same or
various maturities, at par or with an original issue discount.
Reference is made to the Prospectus Supplement for the following terms of the
Debt Securities offered thereby: (i) the designation of and any limit upon the
aggregate principal amount of the Debt Securities; (ii) the percentage of
principal amount at which such Debt Securities will be issued; (iii) the date
on which the Debt Securities will mature; (iv) the currency of denomination of
such Debt Securities, which may be in Dollars or in any foreign currency or
composite currency; (v) the designation of the currency or currencies in which
payment of the principal of, and premium, if any, and interest on such Debt
Securities will be made,
4
<PAGE>
and whether in the event the currency of denomination is other than Dollars,
payment of the principal of, and premium, if any, or the interest on such Debt
Securities, at the election of a Holder thereof, may instead be payable in the
currency of denomination; (vi) the rate or rates (which may be fixed or
floating) per annum, if any, at which the Debt Securities will bear interest;
(vii) the times at which any such interest will be payable; (viii) any index
used to determine the amounts of payments of principal of, and premium, if any,
and interest on such Debt Securities; (ix) any redemption terms; (x) whether
such Debt Securities are to be issued in book-entry form and, if so, the
identity of the depositary; and (xi) any other specific terms associated with
such Debt Securities.
DENOMINATION AND EXCHANGE
The Debt Securities shall be issued in fully registered form unless the
Prospectus Supplement for a particular issue provides otherwise. Any series of
Debt Securities may be issued in whole or in part in a book-entry form. The
Prospectus Supplement relating to a series of Debt Securities which may be
issued in book-entry form will specify the terms and procedures relating
thereto. Unless otherwise set forth in the applicable Prospectus Supplement,
Debt Securities in registered form will be issued in denominations of $1,000
and integral multiples thereof. Principal, premium, if any, and interest, is to
be payable to registered Holders of Debt Securities at the principal office of
the Trustee in New York, New York, or at any paying agency maintained at the
time by the Company for such purpose. At the option of the Company, payment of
interest to registered Holders of Debt Securities may be made by check mailed
to the address of the person entitled thereto as it appears on the register for
Debt Securities. Debt Securities may be presented for registration of transfer
or exchange at such office of the Trustee or at such other location or
locations as may be established pursuant to the 1996 Indenture without any
service charge but subject to the limitations provided in the Indenture.
GLOBAL SECURITIES
Debt Securities of a series may be issued in whole or in part in the form of
one or more global Debt Securities that will be deposited with, or on behalf
of, a depositary identified in the Prospectus Supplement relating to such
series. Global Debt Securities may be issued in either registered or bearer
form and in either temporary or permanent form. (Sections 2.02, 2.03 and 2.08)
The specific terms of the depositary arrangement with respect to a series of
Debt Securities and certain limitations and restrictions relating to Debt
Securities in bearer form will be described in the Prospectus Supplement
relating to such series.
LIMITATION ON LIENS
The Company 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 ("Debt") secured by a mortgage, lien, pledge or
other encumbrance ("Mortgages") upon any Restricted Property without
effectively providing that the Debt Securities (together with, if the Company
so determines, any other indebtedness or obligation then existing or thereafter
created ranking equally with the Debt Securities) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt shall be so secured,
except that this restriction will not apply to: (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 the
acquisition for the purpose of financing all or part of the purchase price; (c)
Mortgages on the property of the Company or a Subsidiary existing on the date
of the 1996 Indenture; (d) Mortgages on property to secure all or part of the
cost of construction or improvements thereon or to secure Debt incurred to
provide funds for any such purpose; (e) Mortgages which secure only
indebtedness owing by a Subsidiary to the Company or to a Subsidiary; (f)
certain Mortgages to government entities; and (g) any extension, renewal or
replacement of any Mortgage referred to in the foregoing clauses (a) through
(f). Notwithstanding the foregoing, the
5
<PAGE>
Company and any one or more Restricted Subsidiaries may, without securing the
Debt Securities, issue, assume or guarantee Debt which would otherwise be
subject to the foregoing restrictions in an aggregate principal amount which,
together with all other such Debt of the Company and its Restricted
Subsidiaries and the aggregate Value of Sale and Lease-Back Transactions (other
than those in connection with which the Company has voluntarily retired Funded
Debt) does not at any one time exceed the greater of $100 million or 10% of
Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries. The following types of transactions shall not be deemed to create
Debt secured by Mortgage: 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, any State
or any department, agency or instrumentality of either. (Sections 5.03 and
5.04)
The term Restricted Property means any of the Company's or a Subsidiary's
plants for the production of petrochemicals (other than such determined by the
Board of Directors not to be a principal plant) and any shares of capital stock
or indebtedness of a Restricted Subsidiary owned by the Company or a
Subsidiary. The term Restricted Subsidiary means any Subsidiary which owns
Restricted Property. The term Subsidiary will be defined to 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 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. LCR is specifically excluded
from the definition of Subsidiary. The term Consolidated Net Tangible Assets
means the total amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (i) 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 (ii) all goodwill, trade
names, trademarks, purchased technology, patents, unamortized debt discount 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. (Article One)
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
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 above provisions, to incur Debt in a principal amount equal to or exceeding
the Value of such Sale and Lease-Back Transaction secured by a Mortgage 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 net proceeds of
the sale of the property leased in such transaction (subject to credits for
certain voluntary retirements of Funded Debt, including the Debt Securities).
(Section 5.04)
CONSOLIDATION, MERGER AND SALE
The 1996 Indenture provides that the Company may merge or consolidate with or
into any other corporation or sell or convey all or substantially all of its
property to any corporation, if (i) (a) in the case of a merger or
consolidation, the Company is the surviving corporation or (b) in the case of a
merger or consolidation where the Company is not the surviving corporation and
in the case of such a sale or conveyance, the successor or acquiring
corporation expressly assumes by supplemental indenture all the obligations of
the Company under the Debt Securities under the 1996 Indenture and (ii) no
default in the performance of any covenant or condition of the 1996 Indenture
shall arise as a result of such merger or consolidation, or such sale or
conveyance. In the event a successor corporation assumes the obligations of the
Company, such successor corporation shall succeed to and be substituted for the
Company under the 1996 Indenture and under the Debt Securities and any coupons
appertaining thereto and all obligations of the company shall terminate.
(Sections 12.01 and 12.03)
6
<PAGE>
MODIFICATION OF THE INDENTURE
The 1996 Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 50% in aggregate
principal amount of the Debt Securities of each series affected by the
modification or amendment at the time outstanding, to modify the 1996 Indenture
or any supplemental indenture or the rights of the Holders of the Debt
Securities; provided that no such modification shall (a) extend the fixed
maturity of any Debt Security, or reduce the rate or extend the time of payment
of interest thereon, or reduce the principal amount thereof, or change the
method of computing the amount of principal thereof at any date, or change the
currency in which the Debt Security is payable, without the consent of the
Holder of each Debt Security so affected, or (b) reduce the aforesaid
percentage of Debt Securities, the consent of the Holders of which is required
for any such modification, without the consent of the Holders of each Debt
Security so affected. (Section 11.02)
EVENTS OF DEFAULT
The 1996 Indenture defines an Event of Default with respect to a particular
series of Debt Securities as being any one of the following events and such
other event as may be established for the Debt Securities of such series: (a)
default for 30 days in any payment of interest on such series; (b) default in
any payment of principal, or premium, if any, on such series when due; (c)
default for 30 days in the payment of any sinking fund installment when due;
(d) default for 90 days after appropriate notice in performance of any other
covenant in the 1996 Indenture applicable to that series; or (e) certain events
in bankruptcy, insolvency or reorganization. No Event of Default with respect
to a particular series of Debt Securities issued under the 1996 Indenture
necessarily constitutes an Event of Default with respect to any other series of
Debt Securities issued thereunder. In case an Event of Default shall occur and
be continuing with respect to a particular series of Debt Securities, the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Debt Securities then outstanding of the series (or, in the case of defaults
under (d) or (e), of the Debt Securities of all series) may declare the
principal or, in the case of discounted Debt Securities, the amount specified
in the terms thereof, of such series (or of all outstanding Debt Securities, as
the case may be) to be due and payable. Any Event of Default with respect to a
particular series of Debt Securities may be waived by the Holders of a majority
of the aggregate principal amount of the outstanding Debt Securities of such
series (or of the outstanding Debt Securities of all series, in the case of
defaults under (d) or (e)), except in each case a failure to pay principal, or
premium, if any, or interest on such Debt Security. (Section 7.01)
The 1996 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 1996 Indenture. (Section 5.08) The 1996 Indenture provides that the Trustee
may withhold notice to the Holders of the Debt Securities of any default
(except in payment of principal, or premium, if any, or interest) if it
considers it in the interest of the Holders of the Debt Securities to do so.
(Section 7.08)
Subject to the provisions of the 1996 Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the 1996
Indenture provides that the Trustee shall be under no obligation to exercise
any of its rights or powers under the 1996 Indenture at the request, order or
direction of the Holders of the Debt Securities unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 8.02) Subject to such
provisions for indemnification and certain other rights of the Trustee, the
1996 Indenture provides that the Holders of a majority in principal amount of
the outstanding Debt Securities of all series affected 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. (Section 7.07)
Other than the restrictions on liens and Sale and Lease-Back Transactions
described above, the 1996 Indenture and the Debt Securities do not contain any
covenants or other provisions designed to afford holders of the Debt Securities
protection in the event of a highly leveraged transaction involving the Company
or any Subsidiary. (Section 7.01)
7
<PAGE>
DEFEASANCE
The 1996 Indenture provides that the Company, at the Company's option: (a)
will be Discharged from any and all obligations in respect of the securities of
a series (except for certain obligations to register the transfer or exchange
of Securities, replace stolen, lost or mutilated Securities, maintain paying
agencies and hold moneys for payment in trust) or (b) need not comply with
certain restrictive covenants of the 1996 Indenture, in each case if the
Company deposits, in trust with the Trustee, money or U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide (without any reinvestment thereof)
money, in an amount sufficient to pay all the principal (including any
mandatory sinking fund payments) of, and interest and premium, if any, on, the
Securities of such series not later than one day before the dates such payments
are due in accordance with the terms of such Securities. To exercise any such
option, the Company is required to deliver to the Trustee an opinion of counsel
to the effect that if listed on any national securities exchange, such
Securities would not be delisted from such exchange as a result of the exercise
of such option. (Section 14.02)
CONCERNING THE TRUSTEE
The Trustee under the 1996 Indenture also acts as trustee under other
indentures 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; (i) through underwriters or
dealers, (ii) directly to a limited number of institutional purchasers or to a
single purchaser, or (iii) through agents. The Prospectus Supplement with
respect to the Offered Debt Securities sets forth the terms of the offering of
the Offered Debt Securities, including the name or names of any underwriters,
the purchase price of the Offered Debt Securities and the proceeds to the
Company from such sale, 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 Offered Debt Securities may be listed.
If underwriters or dealers 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 Offered Debt Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Offered 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.
Offered Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered 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 from certain types of
institutions to purchase Offered 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.
8
<PAGE>
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, 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. Each series of Debt Securities will be a new issue of securities
with no established trading market. Any underwriters to whom Debt Securities
are sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
CERTAIN LEGAL MATTERS
Certain legal matters in connection with the Offered Debt Securities will be
passed upon for the Company by Jeffrey R. Pendergraft, Esq., General Counsel of
Lyondell, and for any underwriters, selling agents and certain other purchasers
by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New
York 10019. Mr. Pendergraft beneficially owns 60,538 shares of Common Stock.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994, have
been audited by Coopers & Lybrand L.L.P., independent accountants, as set forth
in their report which includes an explanatory paragraph pertaining to a change
in the method of accounting for certain turnaround costs during 1993 included
therein, and are incorporated by reference in reliance upon such report and
upon the authority of that firm as experts in accounting and auditing.
9
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN SO AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Lyondell Petrochemical Company............................................. 3
Use of Proceeds............................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Description of Debt Securities............................................. 4
Plan of Distribution....................................................... 8
Certain Legal Matters...................................................... 9
Experts.................................................................... 9
</TABLE>
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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[LOGO OF LYONDELL PETROCHEMICAL APPEARS HERE]
------------------
PROSPECTUS
------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of estimated expenses incurred in connection
with the Common Stock being registered hereby, other than underwriting
discounts and commissions.
<TABLE>
<S> <C>
SEC Registration Fee............................................ $103,450
Printing and Engraving Expenses................................. $ 65,000
Legal Fees and Expenses......................................... $ 50,000
Accounting Fees and Expenses.................................... $ 25,000
Blue Sky Fees and Expenses (including legal fees)............... $ 20,000
Miscellaneous (including rating agency fees).................... $175,000
--------
Total......................................................... $438,450
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws provide that the Company will indemnify each of its
officers and directors to the fullest extent authorized by Section 145 of the
General Corporation Law of the State of Delaware. Article V of the By-Laws
reads as follows:
(a) Indemnification of Officers and Directors. The Company shall
indemnify the officers and directors of the Company with respect to all
matters to which Section 145 of the General Corporation Law of the State of
Delaware may in any way relate, to the fullest extent permitted or allowed
by the laws of the State of Delaware, whether or not specifically required,
permitted or allowed by said Section 145. 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 that may have previously
arisen hereunder.
(b) 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
of officer or to serve another entity at the request of the Company.
(c) 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 indemnify such person against such expense, liability or loss
under the General Corporation Law of Delaware.
(d) Indemnity Agreements. The Company may from time to time enter into
indemnity agreements with the persons who are members of its Board of
Directors, its elected officers and with such other persons as the Board
may designate, the form of such indemnity agreements to be approved by a
majority of the Board then in office.
(e) 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 Article V.
II-1
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware provides:
(a) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, 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 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 shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action 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 reasonable
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 such
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) 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) (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). Such determination shall be made (1) by a majority vote of the
directors who are 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.
II-2
<PAGE>
(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 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 the provisions of 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 director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of 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 an 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.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
The Company's Certificate of Incorporation limits the personal liability of
directors to the Company and its stockholders for monetary damages resulting
from certain breaches of the directors' fiduciary duties. Article VII of the
Certificate of Incorporation provides as follows:
To the fullest extent permitted by the General Corporation Law of Delaware as
the same exists or may hereafter be amended, a director of the Company shall
not be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. If the General Corporation Law of
Delaware is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Company shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of Delaware, as so amended. Any repeal or
modification of this Article VII by the stockholders of the Company shall not
adversely affect any right or protection of a director of the Company
II-3
<PAGE>
existing at the time of such repeal or modification or with respect to events
occurring prior to such time. Notwithstanding anything contained in this
Certificate to the contrary, the affirmative vote of the holders of not less
than 66 2/3 percent of all votes entitled to be cast by the holders of stock of
the Company shall be required to amend or repeal this Article VII or to adopt
any provision inconsistent herewith.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a corporation's Certificate of Incorporation may contain the
following:
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section 174 of this
Title, or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to the date
when such provision becomes effective. All references in this paragraph to
a director shall also be deemed to refer (x) to a member of the governing
body of a corporation which is not authorized to issue capital stock and
(y) to such other person or persons, if any, who, pursuant to a provision
of the certificate of incorporation in accordance with subsection (a) of
141 of this title, exercise or perform any of the powers or duties
otherwise conferred or imposed upon the board of directors by this title.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Form of proposed Underwriting Agreement.
4.1 Indenture, dated as of January 29, 1996, between the Company and Texas
Commerce Bank National Association, as Trustee, relating to the
securities being registered.
5 Opinion with consent of Jeffrey R. Pendergraft, Esq., General Counsel of
the Company.
12 Statement of computation of ratio of earnings to fixed charges.
23.1 Consent of Jeffrey R. Pendergraft, Esq., General Counsel of the Company
(included in Exhibit 5).
23.2 Consent of Coopers & Lybrand.
24 Power of Attorney.
25.1 Statement of eligibility of Texas Commerce Bank National Association, as
Trustee.
99 Form of Indemnity Agreement adopted by the Board of Directors and
executed by the Company and each of its directors and officers (filed as
an exhibit to the Company's Registration Statement
(No. 33-25407) and incorporated herein by reference).
</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, as amended (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;
II-4
<PAGE>
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 by the Company pursuant
to Section 13 or Section 15 (d) of the Securities Exchange Act of 1934, as
amended (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.
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. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
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. The undersigned Registrant hereby undertakes that:
(1) for the purpose 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 Registrant 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.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON JANUARY 31, 1996.
Lyondell Petrochemical Company
/s/ Russell S. Young
By __________________________________
Russell S. Young
Senior Vice President, Chief
Financial Officer and Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Bob G. Gower * Chairman of the Board, Chief January 31, 1996
____________________________________ Executive Officer and
(Bob G. Gower, Director
Principal Executive Officer)
/s/ Dan F. Smith * President, Chief Operating January 31, 1996
____________________________________ Officer and Director
(Dan F. Smith)
/s/ William T. Butler* Director January 31, 1996
____________________________________
(William T. Butler)
/s/ Curtis J. Crawford* Director January 31, 1996
____________________________________
(Curtis J. Crawford)
/s/ D. Travis Engen* Director January 31, 1996
____________________________________
(D. Travis Engen)
/s/ Stephen F. Hinchliffe, Jr.* Director January 31, 1996
____________________________________
(Stephen F. Hinchliffe, Jr.)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Dudley C. Mecum II* Director January 31, 1996
____________________________________
(Dudley C. Mecum II)
/s/ Paul R. Staley* Director January 31, 1996
____________________________________
(Paul R. Staley)
/s/ Russell S. Young Senior Vice President, Chief January 31, 1996
____________________________________ Financial Officer and
(Russell S. Young, Principal Treasurer
Financial Officer)
/s/ Joseph M. Putz Vice President and January 31, 1996
____________________________________ Controller
(Joseph M. Putz, Principal
Accounting Officer)
</TABLE>
/s/ Russell S. Young
- -------------------------------
*(Russell S. Young, as
Attorney-in-Fact)
II-7
<PAGE>
[Draft--01/26/96]
EXHIBIT 1.1
LYONDELL PETROCHEMICAL COMPANY
Underwriting Agreement
New York, New York
Salomon Brothers Inc
As Representative of the several Underwriters
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Lyondell Petrochemical Company, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representative") are acting as
representative, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture dated as of
___________, 1996 (the "Indenture"), between the Company and _______________, as
Trustee (the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) 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 on Form S-3
(File No. 33-_____), 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, although the Basic Prospectus may not include all the
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, the
Basic Prospectus includes all such information required by the Act
<PAGE>
2
and the rules thereunder to be included therein as of 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 Representative 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, the Securities Exchange Act of 1934 (the "Exchange Act") and the
Trust Indenture Act of 1939 (the "Trust Indenture 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 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
<PAGE>
3
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
Representative specifically for use in 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 and each date after the date hereof on which
a document incorporated by reference in the Registration Statement is filed.
"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. "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. "Registration Statement" shall mean
the registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time 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. "Rule 415", "Rule 424", "Rule 430A"
and "Regulation S-K" refer to such rules or regulation under the Act. 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,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration
<PAGE>
4
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 "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.
2. Purchase of the Securities by the Underwriters. Subject to the
terms and conditions and upon the basis of the representations and warranties
herein set forth, the Company agrees to issue and sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount or number of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
3. Delivery of and Payment for the Securities. Delivery of any
payment for the Securities shall be made on the date and at the time specified
in Schedule I hereto (or such later date not later than three business days
after such specified date as the Representative shall designate), which date and
time may be postponed by agreement between the Representative and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representative for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon order of the Company by
wire transfer and payable in immediately available funds. Delivery of the
Securities shall be made at such location as the Representative shall reasonably
designate at least one business day in advance of the Closing Date and payment
for the Securities shall be registered in such names and in such denominations
as the Representative may request not less than three full business days in
advance of the Closing Date.
<PAGE>
5
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Covenants. The Company covenants and agrees with each Underwriter
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereto, to
become effective. 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 the Representative a
copy for their review prior to filing and will not file any such proposed
amendment or supplement to which the Representative 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 Representative of such timely filing.
The Company will promptly advise the Representative (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 at any time when a prospectus
relating to the Securities is required to be delivered under the Act 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 at any
time when a prospectus relating to the Securities is required to be delivered
under the Act 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
<PAGE>
6
efforts 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 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, at any time when a prospectus relating to the securities
is required to be delivered under the Act, 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 (i) prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply any
supplemented Final Prospectus to the Representative in such quantities as it may
reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representative 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 Representative, without charge,
copies of the Registration Statement (including exhibits thereto) and, as 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 supplement thereto as the Representative may reasonably request. The
Company will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representative may
designate, will maintain such qualifications in effect so long as required for
the distribution of the Securities, will arrange for the determination of the
legality of the Securities for purchase
<PAGE>
7
by institutional investors and will pay the fee of the National Association of
Securities Dealers, Inc., in connection with its review, if any, of the
offering.
(f) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
(g) Whether or not this Agreement becomes effective or is terminated
or the sale of the Securities to the Underwriters is consummated, the Company
shall pay or cause to be paid (A) all expenses (including any associated taxes)
incurred in connection with the authorization, issuance, sale and delivery to
the several Underwriters of the Securities, (B) all fees and expenses
(including, without limitation, fees and expenses of the Company's accountants
and counsel, but excluding fees and expenses of counsel for the Underwriters) in
connection with the preparation, printing, filing, delivery and shipping of the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto), each Preliminary Final Prospectus, the Basic
Prospectus and any amendments or supplements of the foregoing, (C) all filing
fees and reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the qualification of the Securities under state
securities laws as provided in Section 4(e) hereof, (D) all fees payable to
rating agencies in connection with the rating of the Securities, (E) the cost of
preparing the Securities, (F) the costs and charges of the Trustee and any
transfer agent or registrar, and (G) all other costs and expenses incident to
the performance of its obligations
<PAGE>
8
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as provided in this Section and Section 6
hereof, the Underwriters shall pay all their own costs and expenses, including
the fees of their counsel, transfer taxes due upon resale of any of the
Securities by them and any advertising expenses incurred in connection with any
offers they may make. 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 shall reimburse the several Underwriters upon demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities.
(h) The Company also agrees to comply with such other covenants as
may be set forth on Schedule I hereto.
5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of the Execution
Time and the Closing Date (as if made at the Closing Date), of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been
filed with the Commission in a timely fashion in accordance with Section 4(a)
hereof; all post-effective amendments to the Registration Statement shall have
become effective, all filings required by Rule 424 shall have been made and no
such filings shall have been made without the consent of the Underwriters; no
stop order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued; no proceedings for the
issuance of any such order shall have been initiated or threatened; and any
request of the Commission for additional information (to be included in the
Registration Statement or the Final Prospectus as amended or supplemented or
otherwise) shall
<PAGE>
9
have been disclosed to the Underwriters and complied with to the Underwriters'
satisfaction.
(b) On or prior to the Closing Date, you shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or opinions,
addressed to the Underwriters, with respect to the form of Registration
Statement and Final Prospectus as amended or supplemented (other than financial
statements and other financial data), the validity of the Securities and other
related matters as you may reasonably request and such counsel shall have
received such documents and information as they request to enable them to pass
upon such matters.
(c) On the Closing Date there shall have been furnished to the
Representative the opinion (addressed to the Representative) of Jeffrey R.
Pendergraft, Esq., Vice President and General Counsel for the Company, dated the
Closing Date and in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) each of the Company and [Lyondell Refining Company, ________ and
__________] (individually, a "Subsidiary" and collectively, the
"Subsidiaries") 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 as amended or supplemented, 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, so as to require such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and the Subsidiaries taken as a
whole;
(ii) all the outstanding shares of capital stock of each 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
as amended or supplemented, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned
<PAGE>
10
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 as amended or supplemented; and the Securities
conform in all material respects to the description thereof contained in
the Final Prospectus as amended or supplemented;
(iv) the Indenture has been duly authorized, executed and delivered by
the Company, 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 general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)); 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, 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, which are material to the Company and its subsidiaries
taken as a whole and of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus as amended or supplemented, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus as amended or supplemented, or
to be filed as an exhibit, which is not described or filed as required; and
the statements in the Company's Annual Report on Form 10-K for the Year
Ended December 31, 1994 under the headings "Legal Proceedings" and, to the
best knowledge of such counsel, "Environmental Matters"
<PAGE>
11
fairly summarize in all material respects the matters therein described;
(vi) the Registration Statement has become effective under the Act;
any required filing of 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 and the Final Prospectus as
amended or supplemented (other than the financial statements and other
financial and statistical information contained therein as to which such
counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the 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 as amended or supplemented includes any untrue statement of 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 has been duly authorized, executed and delivered
by the Company;
(viii) to the best knowledge of such counsel no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated herein, 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;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms
<PAGE>
12
hereof will conflict with, result in a breach of, or constitute a default
under the charter or by-laws of the Company or the terms of any indenture
or other material 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; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Delaware or the
United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at the Closing
Date.
(d) There shall have been furnished to the Representative a
certificate of the Company, dated the Closing Date and addressed to the
Representative, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company contained in this
Agreement are true and correct in all material respects on and as of the Closing
Date 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 complied with or
satisfied at or prior to the Closing Date; (ii) no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for that purpose has been initiated or, to the Company's knowledge, threatened;
and (iii) since the date of the most recent financial statements included or
incorporated by reference in the Final Prospectus as amended or supplemented,
there has been no material adverse change in
<PAGE>
13
the condition (financial or other), 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 in or contemplated by the Final
Prospectus as amended or supplemented.
(e) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease of the character
specified in the letter or letters referred to in paragraph (f) 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 Underwriters, so materially impairs the investment quality of
the Securities as to make it impractical or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and on the Closing Date, the Representative
shall have received a letter of Coopers & Lybrand L.L.P., to the effect set
forth in Annex I hereto, and including such other matters as the Representative
may reasonably request, in form and substance satisfactory to the
Representative, dated on each of such dates and addressed to the Representative.
(g) The Representative shall have been furnished such additional
documents and certificates as the Representative or counsel for the Underwriters
may reasonably request.
(h) On or after the Execution Time, (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 438(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible
<PAGE>
14
negative implications, its rating of any debt securities of the Company.
(i) The Company also agrees to comply with such other conditions as
may be set forth on Schedule I hereto.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Representative and to counsel for the Underwriters.
The Company shall furnish to each Underwriter conformed copies of such opinions,
certificates, letters and other documents in such number as such Underwriter
shall reasonably request. If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as required by
this Agreement, the Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date, by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telegraph or telephone and confirmed in writing.
Unless the parties hereto otherwise agree, the documents required to
be delivered by this Section 5 shall be delivered at the office of Cravath,
Swaine & Moore, counsel for the underwriters, at Worldwide Plaza, 825 Eighth
Avenue, New York, New York, on the Closing Date.
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,
because of any termination pursuant to Section 9 hereof 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 through the Representative upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of one Underwriters' counsel)
approved by the Representative 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 shall
indemnify and hold harmless each Underwriter
<PAGE>
15
against any loss, claim, damage or liability (or any action in respect thereof),
joint or several, to which such Underwriter may become subject, under the
Securities Act, the Securities Exchange Act of 1934 or any other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage or liability (or action in respect thereof) arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Final Prospectus,
the Basic Prospectus or the Registration Statement or Final Prospectus as
amended or supplemented, or (ii) the omission or alleged omission to state in
the Registration Statement, any Preliminary Final Prospectus, the Basic
Prospectus or the Registration Statement or Final Prospectus as amended or
supplemented a material fact required to be stated therein or necessary to make
the statements therein not misleading; and shall reimburse each Underwriter
promptly after receipt of invoices from such Underwriter for any legal or other
expenses as reasonably incurred by such Underwriter in connection with
investigating, preparing to defend or defending against any such loss, claim,
damage, liability or action, notwithstanding the possibility that payments for
such expenses might later be held to be improper, in which case such payments
shall be promptly refunded; provided, however, that the Company shall not be
liable under this paragraph 7(a) in any such case to the extent, but only to the
extent, that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information (to the extent described in Section 12 hereof only) furnished to the
Company through the Underwriters specifically for use in the preparation of the
Registration Statement, any Preliminary Final Prospectus, the Basic Prospectus
or the Registration Statement or Final Prospectus as amended or supplemented.
(b) Each Underwriter severally, but not jointly, shall 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 the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter; provided, however, that such
indemnification or reimbursement shall be available in each such case to the
<PAGE>
16
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information (to the extent described in Section 12
hereof only) furnished to the Company by such Underwriter specifically for use
in the preparation thereof.
(c) Promptly after receipt by any indemnified party under subsection
(a) or (b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure so to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against any indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the 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 appoint counsel to defend such action and approval
by the indemnified party of such counsel, the indemnifying party will not be
liable to such indemnified party under 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 accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party
<PAGE>
17
shall not be liable for the expenses of more than one separate counsel, approved
by the Underwriters 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 reasonably
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) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then the indemnifying party shall, in lieu of
indemnifying the indemnified party, contribute to the amount paid or payable by
the indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, as set forth in the
table on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or
<PAGE>
18
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in the first sentence of this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating, preparing to defend
or defending against any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this subsection (d), no persons guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that upon
the service of a summons or other initial legal process upon it in any action
instituted against it with respect to which contribution may be sought, it shall
promptly give written notice of such service to the party from whom contribution
may be sought, but the omission so to notify such party of any such service
shall not relieve the party from whom contribution may be sought for any
obligation it may have hereunder or otherwise (except as specifically provided
in subsection (c) hereof).
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have, and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Underwriter within the meaning of the Securities Act;
<PAGE>
19
and the obligations of the Underwriters under this Section 7 shall be in
addition to any liability that the respective Underwriters may otherwise have,
and shall extend, upon the same terms and conditions, to each director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
8. Default by an Underwriter. If an Underwriter shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its 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 bears to the aggregate amount or number of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that more than one Underwriter shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriters and such failure to purchase shall constitute a default in the
performance of their obligations under this Agreement, 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 of 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
Representative 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. Effective Date and Termination. (a) The Underwriters shall
notify the Company immediately after they
<PAGE>
20
have taken any action which causes this Agreement to become effective. Until
this Agreement is effective, it may be terminated by the Company by giving
notice as hereinafter provided to the Underwriters, or by the Underwriters by
giving notice as hereinafter provided to the Company, except that the provisions
of Section 4(g) and Section 7 shall at all times be effective. For purposes of
this Agreement, the release of the initial public offering of the Securities for
sale to the public shall be deemed to have been made when the Underwriters
release, by telegram or otherwise, firm offers of the Securities to securities
dealers or release for publication a newspaper advertisement relating to the
Securities, whichever occurs first.
(b) This Agreement shall be subject to termination in the absolute
discretion of the Representative, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such time (i) trading in
the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or 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 financial markets is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
Any notice referred to above may be given at the address specified in
Section 11 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
10. Survival of Certain Provisions. The agreements contained in
Section 7 and the representations, warranties and agreements of the Company
contained in Sections 1 and 4 hereof shall survive the delivery of the
Securities to the Underwriters hereunder and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any indemnified
party, and the provisions
<PAGE>
21
of Sections 4(g) and 7 shall survive any termination or cancelation of this
Agreement.
11. Notices. Except as otherwise provided in the Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, such notice shall be in writing or by telegraph addressed to the
Company at 1221 McKinney Street, Suite 1600, Houston, Texas 77010, Attention:
Vice President and General Counsel; and (b) whenever notice is required by the
provisions of this Agreement to be given to the Underwriters, such notice shall
be in writing or by telegraph addressed to them, c/o Salomon Brothers Inc.,
Seven World Trade Center, New York, New York 10048, Attention: ___________.
12. Information Furnished by Underwriters. The Underwriters
severally confirm and the Company agrees that the statements set forth in the
last paragraph on the outside cover page, the paragraph containing stabilization
information on the inside cover page and the statements under the caption
"Underwriting" in any Preliminary Final Prospectus and in the Final Prospectus,
constitute the only written information furnished by or on behalf of any
Underwriter referred to in paragraph (b) of Section 1 hereof and in paragraphs
(a) and (b) of Section 7 hereof.
13. Parties. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
14. Definition of "Business Day". For purposes of this Agreement,
"Business Day" means any day on which the New York Stock Exchange is open for
trading.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to
principles of conflicts of laws.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
<PAGE>
22
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,
LYONDELL PETROCHEMICAL COMPANY
By: __________________________
Name: Russell S. Young
Title: Vice President and
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of
the date specified in Schedule I hereto.
By: SALOMON BROTHERS INC.
By: __________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
ANNEX I
Pursuant to Section 5(f) of the Underwriting Agreement, Coopers &
Lybrand L.L.P. shall have furnished to the Representative, a letter or letters,
dated respectively as of the Execution Time and as of the Closing Date (which
may be in the form of a "bring down" letter), in form and substance satisfactory
to the Representative, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the applicable published rules
and regulations thereunder and that they have performed a review of the
unaudited interim financial information in accordance with Statement of Auditing
Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and pro forma financial statements included in the
Registration Statement and the Final Prospectus (including those
incorporated therein by reference) and reported on by them comply in form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Relevant Entity (as defined herein) their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants under Statement of Auditing
Standards No. 71 of any unaudited interim financial information as included
in the Registration Statement and Final Prospectus (including those
incorporated therein by reference); carrying out certain specified
procedures (but not an examination 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; a
reading of the minutes of the meetings of the stockholders, directors, and
any committees of the Relevant Entity the Representative may reasonably
request; and inquiries of certain officials of the Relevant Entity who have
responsibility for financial and accounting matters of the Relevant Entity
as to transactions and events subsequent to the date of the most recent
financial statements included in the Final Prospectus, nothing
<PAGE>
2
came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Final Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and with the published rules and regulations
of the Commission with respect to registration statements on Form S-3;
or said unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the date of the most
recent financial statements (other than capsule information), audited
or unaudited, included or incorporated in the Registration Statement
and the 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 long-term debt, less current maturities, of the Relevant Entity or
capital stock of the Relevant Entity or decreases in the total
stockholders' equity of the Relevant Entity or other balance sheet
items the Representatives may reasonably request as compared with the
amounts shown on the most recent financial statements included or
incorporated in the Registration Statement and the Final Prospectus to
such specified date, or there were any decreases, as compared with the
corresponding period in the preceding year or the preceding quarter in
net revenues or income before income taxes or in total or per share
amounts of net income of the Relevant Entity or any other income
statement items as the Representatives may reasonably request, except
in all instances for 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
<PAGE>
3
(3) the information included in the Registration Statement and
Final Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Date), Item 302 (Supplementary Financial Information) and
Item 402 (Executive Compensation), and Item 503 (Ratio of Earnings to
Fixed Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(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 Relevant Entity) set forth in the Registration Statement and the Final
Prospectus, including the information in Items 1, 2, 6, 7 and 11 of any
Annual Report on Form 10-K, included or incorporated in the Registration
Statement and the Final Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in any Relevant Entity's Quarterly
Reports on Form 10-Q, if any, incorporated in the Registration Statement
and the Final Prospectus, agrees with the accounting records of the
Relevant Entity, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement or 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 Relevant Entity and the acquired entity 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
<PAGE>
4
applied to the historical amounts in the compilation of such statements.
References to the Final Prospectus in this Annex I include any
supplement thereto at the date of the letter.
As used in Annex I, the "Relevant Entity" means any entity whose
financial statements are included or incorporated by reference in the
Registration Statement or the Final Prospectus which may include, without
limitation, the Company.
<PAGE>
SCHEDULE I
Underwriting Agreement dated ____________, 1996
Underwriters: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Fax Number (212) 783-1752
_________________
Title of Securities:
Principal Amount:
Interest Rate:
Purchase Price:
Offering Price:
Interest Payment Dates:
Optional Redemption:
Sinking Fund Provisions:
Delayed Delivery:
Closing Date and Time:
Additional Covenants [The Company shall not offer, sell,
Pursuant to contract to sell or otherwise dispose
Section 4: of any debt securities of the Company
in an offering to the public (or in a
private offering in which holders of
debt securities are granted rights to
have such debt securities registered
under the Act or to exchange such
debt securities for other debt
securities that are so registered)
from the date hereof until the first
business
<PAGE>
2
day following the Closing Date,
without the prior written consent of
Salomon Brothers Inc.]
Additional Covenants [At or prior to the Closing Date, the
Pursuant to Officers' Certificates, Opinions of
Section 5: Counsel and any other document
necessary in order to validly issue
the Securities pursuant to the terms
of the Indenture dated as of
__________, 1996 between the Company
and ______________, as Trustee, shall
have been executed and delivered.]
<PAGE>
SCHEDULE II
Principal Amount
of ____________
Underwriter To Be Purchased
- ----------- ----------------
Salomon Brothers Inc.. $
____________________.. $
Total.............. $
<PAGE>
EXHIBIT 4.1
================================================================================
LYONDELL PETROCHEMICAL COMPANY
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, TRUSTEE
--------------------
INDENTURE
Dated as of January 29, 1996
--------------------
================================================================================
<PAGE>
TIE-SHEET
SHOWING THE LOCATION IN THE INDENTURE DATED AS OF JANUARY 29, 1996, BETWEEN
LYONDELL PETROCHEMICAL COMPANY AND TEXAS COMMERCE BANK NATIONAL ASSOCIATION, AS
TRUSTEE OF CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939 (INCLUDING
CROSS-REFERENCES TO THE PROVISIONS OF SECTIONS 310 TO 318(A) WHICH, PURSUANT TO
SECTION 318(C) OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED BY THE TRUST
INDENTURE REFORM ACT OF 1990, ARE PART OF AND GOVERN SUCH INDENTURE PROVISIONS
WHETHER OR NOT PHYSICALLY CONTAINED THEREIN):
<TABLE>
<CAPTION>
SECTION OF
SECTION OF ACT INDENTURE PROVISION
-------------- -------------------
<S> <C>
310 (a) (1), (2) and (5).................... 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) (1), (2) and (3).................... 6.03
314 (a) (4)................................. 5.08
314 (b)..................................... Not applicable
314 (c) (1) and (2)......................... 16.07
314 (c) (3)................................. Not applicable
314 (d)..................................... Not applicable
314 (e)..................................... 16.07
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)..................................... 16.09
- ----------
</TABLE>
This tie-sheet is not part of the Indenture as executed
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES............................................ 1
RECITALS........................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01
Definitions 1
Authorized Newspaper................ 1
Board of Directors.................. 1
Business Day........................ 1
Company............................. 2
Consolidated Net Tangible Assets.... 2
Coupon Security..................... 2
Dollar.............................. 2
Event of Default.................... 2
Fully Registered Security........... 2
Holder.............................. 2
Indenture........................... 2
Interest............................ 3
Interest Payment Date............... 3
Maturity............................ 3
Officers' Certificate............... 3
Opinion of Counsel.................. 3
Original Issue Date................. 3
Original Issue Discount Security.... 3
Person.............................. 3
Place of Payment.................... 4
Principal Office.................... 4
Registered Coupon Security.......... 4
Registered Holder................... 4
Registered Security................. 4
Responsible Officer................. 4
Restricted Property................. 4
Restricted Subsidiary............... 4
Securities and Exchange Commission.. 5
Security or Securities Outstanding.. 5
Stated Maturity..................... 5
Subsidiary.......................... 5
Trustee............................. 6
Trust Indenture Act of 1939......... 6
</TABLE>
<PAGE>
ii
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 2.01 Amount Unlimited; Issuable in Series.. 6
SECTION 2.02 Form of Securities and of Trustee's
Certificate of Authentication........ 7
SECTION 2.03 Global Securities..................... 8
SECTION 2.04 Denomination, Authentication and
Dating of Securities................. 8
SECTION 2.05 Execution of Securities............... 10
SECTION 2.06 Registration, Registration of Transfer
and Exchange......................... 10
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen
Securities........................... 11
SECTION 2.08 Temporary Securities.................. 12
SECTION 2.09 Cancellation of Securities Paid, etc.. 12
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01 Applicability of Article.............. 12
SECTION 3.02 Notice of Redemption; Selection of
Securities........................... 12
SECTION 3.03 Payment of Securities Called for
Redemption........................... 13
ARTICLE FOUR
SINKING FUNDS
SECTION 4.01 Applicability of Article.............. 14
SECTION 4.02 Satisfaction of Mandatory Sinking Fund
Payments with Securities............. 14
SECTION 4.03 Redemption of Securities for Sinking
Fund................................. 14
</TABLE>
<PAGE>
iii
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 5.01 Payment of Principal, Premium and
Interest............................. 15
SECTION 5.02 Offices for Notices and Payments, etc. 15
SECTION 5.03 Limitation on Liens................... 16
SECTION 5.04 Limitation on Sale and Lease Back..... 17
SECTION 5.05 Definition of "Value"................. 17
SECTION 5.06 Appointments to Fill Vacancies in
Trustee's Office..................... 17
SECTION 5.07 Provision as to Paying Agent.......... 17
SECTION 5.08 Annual Certificate to Trustee......... 18
ARTICLE SIX
HOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 6.01 Holders Lists......................... 18
SECTION 6.02 Preservation and Disclosure of Lists.. 19
SECTION 6.03 Reports by the Company................ 20
SECTION 6.04 Reports by the Trustee................ 20
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 7.01 Events of Default..................... 21
SECTION 7.02 Payment of Securities on Default;
Suit Therefor........................ 23
SECTION 7.03 Application of Moneys Collected by
Trustee.............................. 24
SECTION 7.04 Proceedings by Holders................ 25
SECTION 7.05 Proceedings by Trustee................ 25
SECTION 7.06 Remedies Cumulative and Continuing.... 26
SECTION 7.07 Direction of Proceedings and Waiver of
Defaults by Majority of Holders...... 26
SECTION 7.08 Notice of Defaults.................... 26
SECTION 7.09 Undertaking to Pay Costs.............. 27
</TABLE>
<PAGE>
iv
ARTICLE EIGHT
CONCERNING THE TRUSTEE
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 8.01 Duties and Responsibilities of Trustee......... 27
SECTION 8.02 Reliance on Documents, Opinions, etc........... 28
SECTION 8.03 No Responsibility for Recitals, etc............ 29
SECTION 8.04 Trustee, Paying Agent or Registrar May
Own Securities................................ 29
SECTION 8.05 Moneys to be Held in Trust..................... 29
SECTION 8.06 Compensation and Expenses of Trustee........... 29
SECTION 8.07 Officers' Certificate as Evidence.............. 29
SECTION 8.08 Qualification of Trustee; Conflicting Interests 29
SECTION 8.09 Eligibility of Trustee......................... 30
SECTION 8.10 Resignation or Removal of Trustee.............. 30
SECTION 8.11 Acceptance by Successor Trustee................ 31
SECTION 8.12 Succession by Merger, etc...................... 32
SECTION 8.13 Limitation on Rights of Trustee as a
Creditor...................................... 32
ARTICLE NINE
CONCERNING THE HOLDERS
SECTION 9.01 Action By Holders.............................. 35
SECTION 9.02 Proof of Execution by Holders.................. 35
SECTION 9.03 Who Deemed Absolute Owners..................... 35
SECTION 9.04 Company-Owned Securities Disregarded........... 36
SECTION 9.05 Revocation of Consents; Future Holders
Bound......................................... 36
ARTICLE TEN
HOLDERS' MEETINGS
SECTION 10.01 Purposes of Meetings........................... 37
SECTION 10.02 Call of Meetings by Trustee.................... 37
SECTION 10.03 Call of Meetings by Company or Holders......... 37
SECTION 10.04 Qualification for Voting....................... 38
SECTION 10.05 Regulations.................................... 38
SECTION 10.06 Voting......................................... 38
SECTION 10.07 No Delay of Rights by Meeting.................. 39
</TABLE>
<PAGE>
v
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 11.01 Supplemental Indentures without Consent
of Holders............................ 39
SECTION 11.02 Supplemental Indentures with Consent of
Holders of a Series................... 40
SECTION 11.03 Compliance with Trust Indenture Act;
Effect of Supplemental Indentures..... 41
SECTION 11.04 Notation on Securities................. 41
SECTION 11.05 Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee..... 41
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01 Company May Consolidate, etc, on Certain
Terms.................................. 41
SECTION 12.02 Securities to be Secured in Certain
Events................................. 42
SECTION 12.03 Successor Corporation to be Substituted. 42
SECTION 12.04 Opinion of Counsel to be Given Trustee.. 42
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01 Discharge of Indenture................. 42
SECTION 13.02 Deposited Moneys to be Held in Trust by
Trustee............................... 43
SECTION 13.03 Paying Agent to Repay Moneys Held...... 43
SECTION 13.04 Return of Unclaimed Moneys............. 43
</TABLE>
<PAGE>
vi
ARTICLE FOURTEEN
DEFEASANCE
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 14.01 Applicability of Article.............. 43
SECTION 14.02 Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.......... 43
SECTION 14.03 Deposited Moneys and U.S. Government
Obligations to be held in Trust...... 45
SECTION 14.04 Repayment to Company.................. 45
SECTION 14.05 Reinstatement......................... 45
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 15.01 Indenture and Securities Solely
Corporate Obligations................ 45
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01 Provisions Binding on Company's
Successors........................... 46
SECTION 16.02 Benefits of Indenture Restricted to
Parties and Holders.................. 46
SECTION 16.03 Official Acts by Successor Corporation 46
SECTION 16.04 Addresses for Notices, etc............ 46
SECTION 16.05 Notices to Holders; Waiver............ 46
SECTION 16.06 Governing Law......................... 47
SECTION 16.07 Evidence of Compliance with Conditions
Precedent............................ 47
SECTION 16.08 Legal Holidays........................ 47
SECTION 16.09 Trust Indenture Act to Control........ 47
SECTION 16.10 No Security Interest Created.......... 47
SECTION 16.11 Table of Contents, Headings, etc...... 47
SECTION 16.12 Execution in Counterparts............. 47
SECTION 16.13 Acceptance of Trust................... 47
</TABLE>
<PAGE>
INDENTURE, dated as of January 29, 1996, between LYONDELL PETROCHEMICAL
COMPANY, a corporation duly organized and existing under the laws of the State
of Delaware (the "Company"), and Texas Commerce Bank National Association a
national banking association, as trustee (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, or by Securities and Exchange Commission rule under the Trust Indenture
Act of 1939 (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, rule thereunder or in said Securities Act as in force at the date
of the execution of this Indenture.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean The Wall Street Journal or other
newspaper of general circulation in The City of New York (and, if any Place of
Payment is not in The City of New York, in each such Place of Payment) printed
in the English language and customarily published on 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" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which any banking institutions in that Place of
Payment are authorized or obligated by law to close.
<PAGE>
2
Company:
The term "Company" shall mean Lyondell Petrochemical 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, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly 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.
Dollar:
The term "Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
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 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 a 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
<PAGE>
3
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.
Interest Payment Date:
The term "Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
Maturity:
The term "Maturity," when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman, the President or the Senior Vice President, Chief Financial Officer
and Treasurer, and by one of its Assistant Treasurers, and delivered to the
Trustee. If applicable, each certificate shall include the statements provided
for in Section 16.07 if and to the extent required by the provisions of such
Section.
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 reasonably acceptable to Trustee. Each such opinion shall
include the statements provided for in Section 16.07 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 (a) a Security which
has been issued at an issue price lower than the principal amount thereof and
which provides that upon redemption or acceleration of the maturity thereof an
amount less than the principal amount thereof shall become due and payable and
(b) any other Security which for United States federal income tax purposes would
be considered an original issue discount security.
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>
4
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 Sections 2.01(5) and
5.02.
Principal Office:
The term "Principal Office" shall mean the principal corporate trust office
of the Trustee in Houston, at which at any particular time its corporate
trust business shall be administered and which on the date hereof is at 600
Travis St. 8th Floor, Houston, Tx 77002, Attention: Corporate Trust Department,
(except that with respect to presentation of Securities for payment and
transfer, such term shall mean the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, New York at which at any particular
time its corporate agency business shall be conducted, which on the date hereof
is at 55 Water Street, North Building, Room 234, Windows 20 and 21, New York,
New York, 10041).
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 plant for the production of petrochemicals owned by the Company or
a Subsidiary, except (1) related facilities which in the opinion of the Board of
Directors are transportation or marketing facilities, and (2) any plant for the
production of petrochemicals which in the opinion of the Board of Directors is
not a principal plant of the Company and its Subsidiaries; and
(b) any shares of capital stock or indebtedness of a Restricted Subsidiary
owned by the Company or a Subsidiary.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary which owns any
Restricted Property.
<PAGE>
5
Securities and Exchange Commission:
The term "Securities and Exchange Commission" shall mean the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture the Securities and Exchange Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties at such time.
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 Securities, as the case
may be, authenticated and delivered pursuant to this Indenture (including,
without limitation, the Securities of any series issued in temporary or
permanent global form pursuant to Section 2.01(12)); 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:
(a) such Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Securities, or portions thereof, for the payment or redemption of
which moneys (or U.S. Government Obligations as provided in Article Fourteen) 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
2.07 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
<PAGE>
6
other class of securities has or might have voting power by reason of the
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. Without in any other way limiting the foregoing,
LYONDELL-CITGO Refining Company Ltd. shall not be deemed to be a subsidiary.
Trustee:
The term "Trustee" shall mean Texas Commerce Bank National Association
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 amended by the Trust Indenture Reform Act of 1990, as it was in
force at the date of execution of this Indenture, except as provided in Section
11.03.
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 an Officers' Certificate
authorized 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 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 2.06, 2.07, 2.08, 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
<PAGE>
7
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 as provided in Section 5.02;
(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 thereof
pursuant to Section 7.01 or provable in bankruptcy pursuant to Section 7.02
or used to determine the relative voting rights of the Holders thereof
pursuant to Section 10.05 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) if the rate or rate at which the Securities of the series shall
bear interest is to be fixed until Maturity, provisions, if any, for the
defeasance of Securities of the series;
(12) the extent to which any Securities will be issuable in whole or
in part in the form of a global Security or Securities, and, in such case,
the depositary for such global Security or Securities;
(13) the form of Securities of such series; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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 authorized 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
<PAGE>
8
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.
The form of Trustee's certificate of authentication shall be substantially
as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
Texas Commerce Bank National Association, as Trustee
By ________________________________________________
Authorized Signatory
SECTION 2.03. Securities in Global Form. If any Security of a series is
issuable in global form, such Security may provide that it shall represent the
aggregate amount of Securities Outstanding from time to time endorsed thereon
and may also provide that the aggregate amount of Securities Outstanding
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Securities Outstanding represented thereby shall
be made by the Trustee and in such manner as shall be specified in such
Security. Any instructions by the Company with respect to a Security in global
form, after its initial issuance, shall be in writing.
SECTION 2.04. Denomination, Authentication and Dating of Securities. The
Securities of each series may be issued as Registered Securities without coupons
in such 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,
the President, or the Senior Vice President, Chief Financial Officer and
Treasurer. 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:
(a) 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
<PAGE>
9
the date of such certificate, and if the terms and form of such Securities
are established by an Officers' Certificate pursuant to general
authorization of the Board of Directors, such Officers' Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate delivered in accordance with Section
16.07; and
(d) an Opinion of Counsel which shall state:
(1) 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 Sections 2.01 and 2.02 and in
conformity with the provisions of this Indenture;
(2) 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;
(3) 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
(4) 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.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series are to be issued in the form of one or more global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company instructions with respect to such series, authenticate and
deliver one or more global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of all of the
Securities of such series issued and not yet canceled, (ii) shall be registered
in the name of the depositary for such global Security or Securities or the
nominee of such depositary, (iii) shall be delivered by the Trustee to such
depositary or pursuant to such depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless this certificate is
presented by an authorized representative of the depositary to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of the nominee of the depositary or
in such other name as is requested by an authorized representative of the
depositary (and any payment is made to the nominee of the depositary or to such
other entity as is requested by an authorized representative of the depositary),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, the nominee of the
Depositary, has an interest herein."
Each depositary designated pursuant to Section 2.01(12) for a global
Security must, at the time of its designation and at all times while it serves
as depositary, be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or regulation.
<PAGE>
10
SECTION 2.05. 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, its President or its Senior Vice
President, Chief Financial Officer and Treasurer, 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 2.06. 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, upon the written
authorization or request of any officer of the Company, shall authenticate and
deliver, in the name of the designated transferee or transferees, at the expense
of the Company, one or more new Registered Securities of such series of any
authorized denominations and of a like aggregate principal amount and Stated
Maturity.
At the option of the Holder thereof, Securities of a series, 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. 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.
<PAGE>
11
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 2.07. 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 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 each of the Company and the Trustee such
security or indemnity as may be required by either of them, as the case may be,
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 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 to each of the Company
and the Trustee such security or indemnity as may be required by either of them,
as the case may be, 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 2.07 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
<PAGE>
12
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 2.08. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee, upon
satisfaction of the provisions of Section 2.03, shall authenticate and deliver
printed or lithographed temporary Securities. Temporary Securities shall be
issuable in any authorized denomination, and 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 office
or agency of the Company in the Place of Payment for such series, and the
Company shall execute 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 2.09. 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 canceled 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 or otherwise dispose of, or retain in
accordance with its standard retention policy, at its discretion, canceled
Securities or coupons and, where applicable, deliver a certificate of such
destruction or retention 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 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.
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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.
If all of the Securities of a series are to be redeemed, the Company shall
give the Trustee written notice not less than 45 days prior to the redemption
date of the proposed redemption of such securities. If fewer than all the
Securities of a series are to be redeemed, the Company shall give the Trustee
written 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 or before the Business Day preceding 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 the Place of Payment, 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.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of such series, of
authorized denominations in aggregate principal amount and Stated Maturity equal
to the unredeemed portion of the Security so presented.
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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 that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at a principal amount equal to the redemption price (exclusive of
accrued interest and any premium) 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, 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 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.
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15
On or before the Business Day preceding 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
shall duly and punctually pay or cause to be paid the principal of and premium,
if any, and interest, if any, on the Securities of each series in accordance
with the terms thereof and this Indenture and shall 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 a series remain outstanding, the Company shall maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series may be presented for payment, for registration of
transfer and for exchange as provided in this Indenture and where notices and
demands to or upon the Company in respect of the Securities of that series or of
this Indenture may be served. The Company shall 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. Unless otherwise provided pursuant to Section 2.01, the Company hereby
initially designates as the Place of Payment for each series of Securities, the
office or agency of the Trustee in the Borough of Manhattan, New York, New York,
at which its corporate agency business shall be conducted, and 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 principal, premium (if any) and interest with
respect to Registered Securities by check mailed to the address of the Person
entitled thereto, as such address appears on the registry books of the Company;
provided, however, that in the case of a Registered Security issued between a
record date and the initial Interest Payment Date relating to such record date,
interest for the period beginning on the Original Issue Date and ending on such
initial Interest Payment Date shall be paid on such initial Interest Payment
Date to the person to whom such Registered Security shall have been originally
issued. Notwithstanding the foregoing, a holder of $10,000,000 or more in
aggregate principal amount of Registered Securities shall be entitled to receive
such payments by wire transfer of immediately available
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16
funds, but only if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 days prior to the applicable Interest
Payment Date.
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, however, that neither the Company nor
any Restricted Subsidiary shall 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:
(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 of the Company or a Subsidiary existing on the
date of this Indenture;
(d) Mortgages on any property to secure all or part of the cost of
construction or improvements thereon or Debt incurred to provide funds for any
such purpose in a principal amount not exceeding the cost of such construction
or improvements;
(e) Mortgages which secure only an indebtedness owing by a Subsidiary to
the Company or a Subsidiary;
(f) 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;
(g) 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 or political subdivision of either; or
(h) 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 (g) inclusive or of any Debt secured thereby,
provided that the principal amount of Debt secured thereby shall not exceed the
greater of (i) the principal amount of Debt so secured or (ii) the fair market
value of the underlying property or assets to which such Mortgage relates 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 the
<PAGE>
17
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
(h) 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 the
greater of $100 million or 10% of the Consolidated Net Tangible Assets of the
Company and its consolidated Subsidiaries.
SECTION 5.04. Limitation on Sale and Lease-Back. Neither the Company nor
any Restricted Subsidiary shall 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 five 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 Transaction, secured by a
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, shall 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 appoints a
paying agent other than the Trustee with respect to the Securities of any
series, it shall 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
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18
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 acts as its own paying agent with respect to the
Securities of any series it shall, 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 has one or more paying agents with respect to the
Securities of any series, it shall deposit with a paying agent (who shall make
any necessary funds available to any other paying agents), on the Business Day
next preceding each due date in funds available on the due date of the principal
of, premium, if any, and interest, if any, on such Securities, a sum in
immediately available funds sufficient to pay such principal, premium, if any,
and 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 any such principal, premium and interest, and
(unless such paying agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
(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
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. Annual Certificate to Trustee. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company
ending after the date hereof so long as any Securities are outstanding hereunder
(beginning with respect to Securities of each series with the fiscal year 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 and based upon a review made under their supervision of
the activities 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 shall 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
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19
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 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) 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
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20
(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 shall file with the
Trustee, within 30 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) relating to the equity or debt securities of the Company which the
Company may be required to file with said Commission pursuant to section 13 or
15(d) of the Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents or reports pursuant to any 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 shall 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 shall 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) Within 60 days after May 15 of
each 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 such May 15 with respect to any of the following events which may have
occurred during the 12 months preceding the date of such report (but if no such
event has occurred within such period, no report need be transmitted):
(1) any change to its eligibility under Section 8.09 or its qualification
under Section 8.08;
(2) the creation of or any material change to a relationship specified in
Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act of 1939;
(3) 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 more than 1/2 of 1%
of the principal amount at Stated Maturity of the Securities outstanding on the
date of such report;
(4) 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;
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21
(5) any change to the property and funds, if any, physically in the
possession of the Trustee, as such, on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) 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;
(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 furnished to the Company and 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 shall 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
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22
(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
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 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 any 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 any 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 specified as an Event of Default in the form of
Security for such series, or in the supplemental indenture, Officers'
Certificate or resolution of the Board of Directors under which such series of
Securities is issued, if any.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) (if the
Event of Default under clause (d) or (g) is with respect to less than all series
of Securities then outstanding) occurs and is continuing, 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 not
less than 25% in aggregate principal amount at Stated Maturity of the Securities
of such series then outstanding hereunder (each such series acting as a separate
class), 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) or (g) (if the
Event of Default under clause (d) or (g) is with respect to all series of
Securities then outstanding) or (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 (treated as one class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (in the case of Original Issue Discount Securities, such portion of the
principal amount to be determined as provided in Section 2.01(9)) of all the
Securities to be due and payable immediately, and upon any such declaration the
same shall become and shall
<PAGE>
23
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 the
Securities, as the case may be, to the date of such payment or deposit) and all
sums paid or advanced by the Trustee hereunder, and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
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. 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 shall 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 on the overdue principal and premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) on 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.
<PAGE>
24
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 any 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 on 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 claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) 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, expenses, disbursements and advances of the
Trustee, its agents or counsel, and any other amounts due to the Trustee under
Section 8.06 hereof.
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;
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
<PAGE>
25
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.
FOURTH: 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 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 Section 2.01(9))) 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 Holder of every Security of that series with
every other 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 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.
<PAGE>
26
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
Section 2.01(9)) 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 such direction shall not conflict with any rule of law
or this Indenture, and provided further, that (subject to the provisions of
Section 8.01) the Trustee may take any action deemed proper by the Trustee which
is not inconsistent with such direction and 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 (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 a majority in 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 Section
2.01(9))) may waive in writing such default or Event of Default and 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; provided, however, 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
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. Except with respect
to a default or Event of Default pursuant to Section 7.01(a), (b) or (c), the
Trustee will not be charged with knowledge of any default or Event of Default
unless written notice thereof shall have been given to a Responsible Officer by
the Issuer or any Holder. Except with respect to a default or Event of Default
pursuant to Section 7.01(a), (b) or (c), the Trustee will not be charged with
knowledge of any default or Event of Default unless written notice thereof shall
have been given to a Responsible Officer by the Issuer or any Holder.
<PAGE>
27
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
Section 2.01(9))) 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 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.
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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.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
8.01.
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 its Chairman and Chief Executive Officer, its President or its
Senior Vice President, Chief Financial Officer and 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) whenever in the administration of the Indenture, the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically provided) may, in the absence of bad faith on its part,
rely on an Officers' Certificate;
(d) the Trustee may consult with its counsel or require an Opinion of
Counsel and any such 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;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, pursuant to 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;
(f) 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;
(g) 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 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
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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29
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, of any of
the Securities or coupons or of any prospectus related to the Securities of any
series; provided, however, 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 shall pay
to the Trustee from time to time, and the 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
shall 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
be attributable to its negligence or willful misconduct. The Company shall
indemnify the Trustee for, and shall hold it harmless against, any loss,
liability or expense incurred without negligence or willful misconduct 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 willful misconduct 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 willful misconduct 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. Qualification of Trustee; Conflicting Interests. The
Trustee with respect to each series of Securities issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act of 1939
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities issued hereunder,
there shall be excluded from the operation of this paragraph of this Indenture
the Securities of any particular series other than that series and any indenture
or indentures under which other securities, or certificates
<PAGE>
30
of interest or participation in other securities, of the Company are
outstanding, as provided in Section 3.10(b) of the Trust Indenture Act of 1939.
Nothing herein shall prevent the Trustee from filing with the Securities and
Exchange Commission the application referred to in the second to the last
paragraph of Section 3.10(b) of the Trust Indenture Act of 1939.
SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each
series of Securities hereunder shall at all times be either:
(a) a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by Federal or State authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation, or other order of the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers and subject to the
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to a United States institutional trustee, having a
combined capital and surplus of at least $10,000,000. 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. Neither the Company nor
any person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as trustee with respect to any series of
Securities issued hereunder. In case at any time the Trustee with respect to
any 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 a resolution 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 Securities, or shall not 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.
(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,
<PAGE>
31
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 a resolution 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
who 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, subject to Section 3.15(e) of the Trust Indenture Act of 1939,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee with respect to that series.
(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 16.05 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 as 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 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
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32
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 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 by merger,
conversion or consolidation to such authenticating Trustee may adopt such
certificate of authentication and deliver such Securities of any series so
authenticated with the same effect as if such successor to the Trustee had
itself authenticated such Securities.
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 three
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):
(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 three-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 three-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
<PAGE>
33
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 three-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 three-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 three 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 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 three-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 the
irrespective 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 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
three-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee
<PAGE>
34
has resigned or been removed prior to the beginning of such three-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 three-month period; and
(ii) such receipt of property or reduction of claim occurred within three
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;
(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.
<PAGE>
35
(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, 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 meeting of such Holders.
(b) If the Company or Trustee shall solicit from the Holders of any or all
series any request, demand, authorization, direction, notice, consent, waiver or
other act, the Company or Trustee, as the case may be, 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
or Trustee, as the case may be, 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 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, however, 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.
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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.
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.
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
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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:
(a) 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;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Eight;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.02; or
(d) 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
Houston, Texas, or New York, 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. 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 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
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determine the time and the place in a location designated in Section 10.02 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 in principal amount (in the case
of Original Issue Discount Securities, such principal amount to be determined as
provided in Section 2.01(9)) of such Securities 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 to
another specified time and place 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
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39
the other to the Trustee to be preserved by 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 contained in this
Article Ten 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 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, that such action shall not adversely
affect the interests of the Holders of Securities of any series;
(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
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40
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;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America; or
(h) to conform the Indenture to the provisions of the Trust Indenture Act
of 1939, as then in effect.
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.
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
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
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, or (iii) modify any provision
of this Section 11.02 or Section 7.07 hereof except to increase any such
percentage or to provide certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security affected
thereby. 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 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.
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41
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 evidence that
any supplemental indenture executed pursuant hereto is authorized and permitted
by this Indenture and 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 any modification contained in any indenture supplemental hereto under which
any series of Securities is issued and 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, 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; and provided further
that the Company or such successor corporation, as the case may be, shall not
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42
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition.
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 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 Lyondell Petrochemical 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. Before the Trustee
shall execute any supplemental indenture required pursuant to this Article
Twelve, the Trustee, subject to Sections 8.01 and 8.02, shall 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.
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
canceled, or (b) all the Securities of any series not theretofore canceled 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
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43
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 canceled 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 16.07 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
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
DEFEASANCE
SECTION 14.01. Applicability of Article. If pursuant to Section 2.01
provision is made for the defeasance of Securities of a series, then the
provisions of this Article shall be applicable except as otherwise specified as
contemplated by Section 2.01 for Securities of such series.
SECTION 14.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations. At the Company's option, either (i) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with
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44
respect to Securities of any series on the 91st day after the applicable
conditions set forth below have been satisfied, or (ii) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Sections 5.03, 5.04, 5.08, 12.01 and 12.02 with respect to Securities
of any series at any time after the applicable conditions set forth below have
been satisfied:
(a) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities of such
series, (i) money in an amount, or (ii) U.S. Government Obligations (as defined
below), which through the payment of interest, principal and premium, if any, in
respect thereof in accordance with their terms will provide (without any
reinvestment of such interest, principal or premium), not later than one day
before the due date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee at or prior to the time
of such deposit, to pay and discharge each installment of principal (including
any mandatory sinking fund payments) of, premium, if any, and interest on, the
outstanding Securities of such series on the dates such installments of
interest, principal or premium are due or the outstanding Securities of such
series are redeemable, if applicable, pursuant to Section 14.02(b) below;
(b) in case any of the Securities of such series are to be redeemed on any
date prior to their Stated Maturity, the Company shall have given to the Trustee
an irrevocable notice pursuant to Section 3.02 of this Indenture requiring
redemption of such Securities on such date and the Company shall have given to
the Trustee in form satisfactory to the Trustee irrevocable instructions to
publish notice of redemption of such Securities prior to said date as provided
in Section 3.02 of this Indenture; and in the event such Securities are not to
be redeemed within the 60 days next succeeding the date of such deposit with the
Trustee, the Company shall have given the Trustee in form satisfactory to it
irrevocable instructions to publish, as soon as practicable, once in each of two
successive calendar weeks in an Authorized Newspaper, a notice to the Holders of
such Securities that the deposit required by Section 14.02(a) has been made with
the Trustee and stating such Maturity or redemption date or dates upon which
moneys are to be available for the payment of the principal of, premium, if any,
and interest on such Securities;
(c) the Company shall have delivered to the Trustee an Officers'
Certificate certifying as to whether the Securities of such series are then
listed on the New York Stock Exchange;
(d) if the Securities of such Series are listed on the New York Stock
Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Company's exercise of its option under this Section would
not cause the Securities to be delisted;
(e) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with respect
to the Securities of such series shall have occurred and be continuing on the
date of such deposit as evidenced to the Trustee in an Officers' Certificate
delivered to the Trustee concurrently with such deposit; and
(f) the Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 8.06.
"Discharged" means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under, the Securities of
such series and to have satisfied all the obligations under this Indenture
relating to the Securities of such series (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
(A) the rights of Holders of Securities of such series to receive, from the
trust fund described in clause (a) above, payment of the principal of, and
premium, if any, and the interest on such Securities when such payments are due,
(B) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 5.02 and 14.03 and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including without limitation,
the provisions of Section 8.06.
<PAGE>
45
"U.S. Government Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case under clauses
(i) or (ii) are not callable or redeemable at the option of the issuer thereof.
SECTION 14.03. Deposited Moneys and U.S. Government Obligations to be held
in Trust. All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 14.04. Repayment to Company. After the Maturity and payment of
the principal of, premium, if any, and interest on the Securities of any series
for which money or U.S. Government Obligations have been deposited pursuant to
Section 14.02, the Trustee and any paying agent shall promptly pay or return to
the Company upon request any money and U.S. Government Obligations held by them
that are not required for the payment of the principal of, premium, if any, and
interest on the Securities of such series. The provisions of Section 13.04
shall apply to any money held by the Trustee or any paying agent under this
Article that remains unclaimed for two years after the Maturity of any series of
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 14.02.
SECTION 14.05. Reinstatement. If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 14.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 14.02 until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 14.02.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS, EMPLOYEE AND AFFILIATES
SECTION 15.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or 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, director, employee
or affiliate 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.
<PAGE>
46
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements by the Company contained in the
Indenture shall bind its successors and assigns whether so expressed or not.
SECTION 16.02. 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 Fifteen, all of such covenants, conditions and
provisions shall be for the sole benefit of the parties hereto and the Holders.
SECTION 16.03. 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 16.04. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or 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 Senior Vice President and Treasurer at the principal office of
the Company at One Houston Center, 1221 McKinney Street, Suite 1600, Houston,
Texas 77010 (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 600 Travis St. 8th Floor, Houston, Tx 77002,
addressed to the attention of its Corporate Trust Department.
SECTION 16.05. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, 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. 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. The Trustee shall deliver to the Company a copy of any notice delivered
by the Trustee to the Holders hereunder concurrently with the delivery of such
notice to the Holders.
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.
<PAGE>
47
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 16.06. GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16.07. 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 (other than annual certificates provided pursuant to Section
5.08) shall include (a) a statement that the person making such certificate or
opinion has read such covenant or condition; (b) 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; (c) 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 (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 16.08. 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 not be a Business Day at the applicable Place of Payment, then
payment of such interest and premium, if any, on or principal of the Securities
need not be made at such Place of Payment on such date but may be made on the
next Business Day at such Place of Payment 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 16.09. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 16.10. No Security Interest Created. Nothing in this Indenture or
in the Securities, expressed or implied, shall be construed to create or
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 16.11. 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 16.12. 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 16.13. 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>
48
IN WITNESS WHEREOF, LYONDELL PETROCHEMICAL COMPANY has caused this
Indenture to be signed and acknowledged by its Senior Vice President, Chief
Financial Officer and Treasurer, and its corporate seal to be affixed hereunto,
and the same to be attested by its Secretary or an Assistant Secretary, and
Texas Commerce Bank National Association, as Trustee, has caused this Indenture
to be signed by one of its Vice Presidents or Assistant Vice Presidents as of
the day and year first written above.
LYONDELL PETROCHEMICAL COMPANY
(SEAL) By: _______________________________________
Russell S. Young
Senior Vice President,
Chief Financial Officer and Treasurer
Attest:
____________________________
Kerry A. Galvin
Assistant Secretary
Texas Commerce Bank National Association, as Trustee
(SEAL) By: ______________________________________
<PAGE>
49
STATE OF TEXAS ) SS.:
COUNTY OF HARRIS )
Before me, ___________________________________, the undersigned officer, on
this day personally appeared Russell S. Young, known to me to be the person
whose name is subscribed to the foregoing instrument, and known to me to be the
Senior Vice President, Chief Financial Officer and Treasurer of Lyondell
Petrochemical Company, a Delaware corporation, and acknowledged to me that he
executed said instrument for the purpose and consideration therein expressed,
and as the act of said corporation.
Given under my hand and seal of office this _____ day of ______________, 1996.
(SEAL) _________________________________________________
Notary Public
<PAGE>
50
STATE OF ) SS.:
COUNTY OF )
Before me, __________________________________________, the undersigned
officer, on this day personally appeared , known to me to be the
person whose name is subscribed to the foregoing instrument, and known to me to
be a Vice President of ___________________________, a national banking
association, and acknowledged to me that he executed said instrument for the
purpose and consideration therein expressed, and as the act of said bank.
Given under my hand and seal of office this _____ day of ______________, 1996.
(SEAL) _________________________________________________
Notary Public
<PAGE>
EXHIBIT 5
January 31, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Registration Statement on Form S-3 (No. 33- )
Relating to the Lyondell Petrochemical Company
$300,000,000 of Debt Securities
Ladies and Gentlemen:
As General Counsel of Lyondell Petrochemical Company (the "Company"), I
have reviewed the form of Indenture dated as of January 29, 1996 (the
"Indenture"), between the Company and Texas Commerce Bank National Association,
as Trustee (the "Trustee"), and have considered the proposed issuance and sale
thereunder of debt securities in the aggregate principal amount of up to
$300,000,000 (the "Debt Securities"). This opinion is being furnished in
connection with and as an exhibit to the above referenced Registration
Statement.
In connection with this opinion, I have examined the Company's Certificate
of Incorporation, its By-Laws, and the records of its corporate proceedings with
respect to the Debt Securities. In addition, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of such other
documents, instruments and corporate records, and I have made such other
investigations, as I have deemed necessary in order to express the opinions
hereinafter set forth. In my examinations, I have assumed the genuineness of
all signatures, the authenticity of all original documents examined by me, and
the conformity to the originals of all copies of documents reviewed by me and
the authenticity of the originals of such copies.
<PAGE>
Securities and Exchange Commission
January 31, 1996
Page 2
On the basis of the aforementioned investigation, it is my opinion that
upon execution and delivery of the Indenture by the officers of the Company, as
authorized by the Company's Board of Directors by resolution adopted January 26,
1996, and upon due execution of the Indenture by the Trustee, and upon issuance
of the Debt Securities in the manner contemplated by the above referenced
Registration Statement, the Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company.
I consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and to the use of my name in the Prospectus under
the caption "Certain Legal Matters."
Very truly yours,
/s/ Jeffrey R. Pendergraft
Jeffrey R. Pendergraft
General Counsel
<PAGE>
EXHIBIT 12
STATEMENT SETTING FORTH COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(Millions of dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Historical Information
Income from continuing
operations before income
taxes $618 $349 $ 16 $ 35 $340
Fixed charges:
Interest expense, gross 80 74 74 79 74
Portion of rentals
representative of
interest 20 17 14 12 11
---- ---- ---- ---- ----
Total fixed charges before
capitalized interest 100 91 88 91 85
Capitalized interest 6 0 0 0 0
---- ---- ---- ---- ----
Total fixed charges
including capitalized
interest 106 91 88 91 85
---- ---- ---- ---- ----
Earnings $718 $440 $104 $126 $425
Ratio of earnings to fixed
Charges 6.8x 4.8x 1.2x 1.4x 5.0x
==== ==== ==== ==== ====
</TABLE>
Page 1
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 (no. 33- ) of our report, which includes an explanatory
paragraph pertaining to a change in the method of accounting for certain
turnaround costs during 1993, dated February 10, 1995 on our audits of the
consolidated financial statements of Lyondell Petrochemical Company as of
December 31, 1994 and 1993, and for each of the three years in the period ended
December 31, 1994, which report is included in the Annual Report on Form 10-K
for the year ended December 31, 1994. We also consent to the reference to our
firm under the caption "Experts".
/s/ Coopers and Lybrand L.L.P.
Houston, Texas
January 31, 1996
<PAGE>
EXHIBIT 24
LYONDELL PETROCHEMICAL COMPANY
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Bob G. Gower, Joseph M. Putz and Russell S. Young, 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 any outstanding
securities of Lyondell Petrochemical Company (the "Company"), or any public
offering or other issuance of any securities of the Company authorized by the
Board of Directors of the Company, or by the Executive Committee thereof
pursuant to due authorization by such Board, (1) to execute and file, or cause
to be filed, with the United States 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
<PAGE>
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
law 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, 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
<PAGE>
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: March 24, 1995
Signature Title
--------- -----
/s/ Bob G. Gower
_____________________________ Chairman, Chief Executive
Bob G. Gower Officer and Director
(Principal Executive Officer)
/s/ Russell S. Young
______________________________ Senior Vice President,
Russell S. Young Chief Financial Officer and
(Principal Financial Officer) Treasurer
/s/ Joseph M. Putz
______________________________ Vice President and
Joseph M. Putz Controller
(Principal Accounting Officer)
<PAGE>
Signature Title
--------- -----
/s/ Dr. William T. Butler
_______________________________ Director
Dr. William T. Butler
/s/ Curtis J.Crawford
______________________________ Director
Curtis J.Crawford
/s/ D. Travis Engen*
______________________________ Director
D. Travis Engen*
/s/ Stephen F. Hinchliffe, Jr.
______________________________ Director
Stephen F. Hinchliffe, Jr.
/s/ Dudley C. Mecum II
______________________________ Director
Dudley C. Mecum II
/s/ Dan F. Smith
______________________________ Director
Dan F. Smith
/s/ Paul R. Staley
______________________________ Director
Paul R. Staley
* Effective as of April 1, 1995
<PAGE>
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)______
_______________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
___________________
LYONDELL PETROCHEMICAL COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 95-4160558
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1221 MCKINNEY STREET, SUITE 1600
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
(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.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES
OF THE TRUSTEE:
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
--------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and response
to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM THAT
NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF THE ACT
ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING
A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE
SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
<PAGE>
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN AMOUNT OWNED
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN AMOUNT OWNED
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE
TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
- ---------------- ------------------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------------------------- ----------- ------------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------------------------- ----------- ------------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- -------------------------------- ----------- ------------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the securities
under this indenture. (See Note on Page 5.)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See Note
on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
<PAGE>
<TABLE>
<CAPTION>
ITEM 16. LIST OF EXHIBITS.
<S> <C>
</TABLE>
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
<TABLE>
<CAPTION>
<C> <S> <C>
.1 __ A copy of the articles of association of the trustee as now
in effect.
#2 __ A copy of the certificate of authority of the trustee to
commence business.
*3 __ A copy of the authorization of the trustee to exercise
corporate trust powers.
/ /4 __ A copy of the existing by-laws of the trustee.
5 __ Not applicable.
*6 __ The consent of the trustee required by Section 321(b) of
the Act.
/ /7 __ A copy of the latest report of condition of the requirements
of its supervising or examining trustee published pursuant
to law or the authority.
8 __ Not applicable.
9 __ Not applicable.
- -------------
</TABLE>
. Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as an exhibit
to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-11 File No. 33-25132.
/ / Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as exhibits to
the Form S-3 File No. 33-65055.
_______________________________
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13, the
answers to said Items are based on incomplete information. Such Items may,
however, be considered as correct unless amended by an amendment to this Form
T-1.
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF HOUSTON
AND STATE OF TEXAS, ON THE 29TH DAY OF JANUARY, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /S/ Terry Stewart
Terry Stewart
Assistant Vice President and Trust Officer
