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As filed with the Securities and Exchange Commission on Commission on November
15, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUEVO ENERGY COMPANY DELAWARE
NUEVO FINANCING I DELAWARE
(Exact name of registrant as (State or other jurisdiction of
specified in its charter) incorporation or organization)
76-0304436
TO BE APPLIED FOR
(I.R.S. Employer
Identification No.)
1331 LAMAR, SUITE 1650, HOUSTON, TEXAS 77010
TELEPHONE: (713) 652-0706
(Address, including zip code, and telephone number including
area code, of registrant's principal executive offices)
ROBERT M. KING
1331 LAMAR, SUITE 1650, HOUSTON, TEXAS 77010
TELEPHONE: (713) 652-0706
(Name, address, including zip code, and telephone number
including area code, of agent for service)
-------------------
Copy to:
BUTLER & BINION, L.L.P.
1600 FIRST INTERSTATE BANK PLAZA
HOUSTON, TEXAS 77002
ATTN: GEORGE G. YOUNG III, ESQ.
TELEPHONE: (713) 237-3111
TELECOPY: (713) 237-3202
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: FROM
TIME TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [_]
If any 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. [_]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXI- PROPOSED MAXI- AMOUNT OF
SECURITIES TO BE TO BE MUM OFFERING PRICE PER UNIT MUM AGGREGATE REGISTRATION
REGISTERED(1) REGISTERED OFFERING PRICE FEE
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PRIMARY OFFERING:
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<S> <C> <C> <C> <C>
Trust Preferred Securities of Nuevo
Financing I ("Financing")
Debt Securities of Nuevo Energy Company
("Nuevo")
Guarantee of Trust Preferred Securities
of Financing by Nuevo and certain backup
undertakings (4)
Preferred Shares, par value $1.00 of
Nuevo
Common Stock, par value $0.01 of Nuevo
Warrants of Nuevo (1)(3) (1)(2)(3) $150,000,000(1)(2) $45,455.00
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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SECONDARY OFFERING:
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 2,138,605 shares $52.25(5) $ 111,742,112 $33,862
=================================================================================================================================
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies or in amounts
determined by reference to an index. Such amount represents the aggregate
offering price of the Trust Preferred Securities of Nuevo Financing I and
the Debt Securities, Preferred Stock, Common Stock, Warrants to Purchase
Debt Securities and Warrants to Purchase Equity Securities of Nuevo Energy
Company and the exercise price of any Securities issuable upon exercise of
Warrants of Nuevo Energy Company. Subordinated Debt Securities of Nuevo
Energy Company may be issued and sold to Nuevo Financing I, in which event
such Subordinated Debt Securities may later be distributed to the holders
of Trust Preferred Securities.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933.
(3) Includes such indeterminate number of shares of Preferred Stock and Common
Stock and liquidation amount of trust Preferred Securities as may be issued
upon conversion or exchange for any Debt Securities or Preferred Stock that
provide for conversion or exchange into other securities and such
indeterminate number of shares of Common Stock as may be issued upon
conversion of Trust Preferred Securities. No separate consideration will be
received for the Preferred Stock or Common Stock issuable upon conversion
of or in exchange for such other securities.
(4) No separate consideration will be received for the Guarantee. The Guarantee
includes the rights of holders of the Trust Preferred Securities under the
Guarantee and certain back-up undertakings, comprised of obligations of
Nuevo Energy Company under the Subordinated Indenture and Supplemental
Indentures thereto and under the Declarations of Trust of Nuevo Financing
I, each as described in the Registration Statement.
(5) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee based upon the average of the high and low
sales prices reported on the New York Stock Exchange Composite Tape on
November 14, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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2
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SUBJECT TO COMPLETION DATED NOVEMBER 15, 1996
Prospectus
NUEVO ENERGY COMPANY
Debt Securities, Preferred Stock,
Common Stock and Warrants
NUEVO FINANCING I
Trust Preferred Securities Fully and Unconditionally Guaranteed by Nuevo Energy
Company
Nuevo Energy Company ("Nuevo" or the "Company") may offer and issue from time to
time, together or separately, (i) its debt securities (the "Debt Securities"),
which may be senior or senior subordinated debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), consisting of notes, debentures or other secured or unsecured
evidences of indebtedness in one or more series; (ii) its preferred shares,
$1.00 par value per share (the "Preferred Stock"); and (iii) warrants to
purchase Debt Securities or Preferred Stock or Common Stock or any combination
thereof, as shall be designated by the Company at the time of the offering (the
"Warrants") in amounts, at prices and on terms to be determined at the time of
the offering. Any shares of its common stock, $.01 par value per share ("Common
Stock"), issued by Nuevo hereunder will be issued only upon conversion of, or in
exchange for, other securities, and no Common Stock will be issued by Nuevo in a
primary offering. Certain Selling Stockholders identified under "Selling
Stockholders" herein may sell up to 2,138,605 shares of Common Stock, in
amounts, at prices and on terms to be determined at the time of the offering.
Nuevo Financing I (the "Nuevo Trust"), a statutory business trust created under
the laws of the State of Delaware, may offer, from time to time, preferred
securities, representing undivided beneficial interests in the assets of the
Nuevo Trust ("Trust Preferred Securities"). Trust Preferred Securities may also
be issuable upon exchange for shares of Preferred Stock issued by the Company.
The payment of periodic cash distributions ("distributions") with respect to
Trust Preferred Securities out of moneys held by the Nuevo Trust, and payment on
liquidation, redemption or otherwise with respect to such Trust Preferred
Securities, will be guaranteed by the Company to the extent described herein
(the "Trust Preferred Securities Guarantee"). See "Description Of Trust
Preferred Securities Guarantee." The Company's obligations under the Trust
Preferred Securities Guarantee will be subordinate and junior in right to all
other liabilities of the Company and rank pari passu with the most senior
preferred stock, if any, issued from time to time by the Company. A series of
Subordinated Debt Securities may be issued and sold to the Nuevo Trust, or a
trustee of the Nuevo Trust, in connection with the investment of the proceeds
from the offering of Trust Preferred Securities and Trust Common Securities (as
defined herein, together the "Trust Securities") of the Nuevo Trust. The
Subordinated Debt Securities purchased by the Nuevo Trust may be subsequently
distributed pro rata to holders of Trust Preferred Securities and Trust Common
Securities in connection with the dissolution of the Nuevo Trust upon the
occurrence of certain events as may be described in an accompanying supplement
to this Prospectus (a "Prospectus Supplement"). The Trust Preferred Securities
Guarantee, when taken together with the Company's other obligations under the
Subordinated Debt Securities, the Indenture related thereto and the Declaration
(as defined below), including its obligations to pay costs, expenses, debts and
liabilities of the Nuevo Trust (other than with respect to the Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Trust Preferred Securities. The Debt
Securities, Preferred Stock, Common Stock, Warrants, Trust Preferred Securities
and Trust Preferred Securities Guarantees are collectively called the
"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 ON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________, 1996
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The Securities to be sold by the Company and/or the Nuevo Trust may be offered
as separate series or issuances at an aggregate initial public offering price
not to exceed $150,000,000 or, if applicable, the equivalent thereof in one or
more foreign currencies, currency units, composite currencies or in amounts
determined by reference to an index as shall be designated by the Company, in
amounts, at prices and on terms to be determined in light of market conditions
at the time of sale and set forth in the applicable Prospectus Supplement. The
Prospectus Supplement relating to any series of Securities will contain
information concerning United States federal income tax considerations, if
applicable.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank on a parity with all
other unsubordinated indebtedness of the Company or, alternatively, will rank on
a parity with all other senior subordinated indebtedness of the Company. The
Subordinated Debt Securities, when issued, will be subordinated in right of
payment to all Senior Indebtedness (as hereinafter defined) of the Company
including any Senior Debt Securities. If the Debt Securities are secured, the
security, which may consist of oil and gas properties or other assets owned by
the Company, and any related mortgage will be described in the Prospectus
Supplement.
Certain specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement, including, where applicable, (i) in the case of Debt Securities, the
title, aggregate principal amount, denominations, maturity, subordination terms,
if any, any interest rate (which may be fixed or variable) and time of payment
of any interest, the right of the Company, if any, to defer payment of interest
on the Debt Securities and the maximum length of such deferral period, any terms
for redemption at the option of the Company or the holder, any terms for sinking
fund payments, any terms for conversion or exchange into other Securities,
currency or currencies of denomination and payment, if other than U.S. dollars,
any security applicable to Debt Securities which are secured, any listing on a
securities exchange and any other terms in connection with the offering and sale
of the Debt Securities in respect of which this Prospectus is delivered, as well
as the initial public offering price; (ii) in the case of Trust Preferred
Securities, the designation and number, liquidation preference per Trust
Preferred Security, initial public offering price, any listing on a securities
exchange, distribution rate (or method of calculation thereof), dates on which
distributions shall be payable and dates from which distributions shall accrue,
any voting rights, terms for any conversion or exchange into other Securities,
any redemption, exchange or sinking fund provisions, any other rights,
preferences, privileges, limitations or restrictions relating to the Trust
Preferred Securities and the terms upon which the proceeds of the sale of the
Trust Preferred Securities shall be used to purchase a specific series of
Subordinated Debt Securities of the Company, (iii) in the case of Preferred
Stock, the specific title, the aggregate amount, any dividend (including the
method of calculating payment of dividends), seniority, liquidation, redemption,
voting and other rights, any terms for any conversion or exchange into other
Securities, including Trust Preferred Securities, any listing on a securities
exchange, the initial public offering price and any other terms; and (iv) in the
case of Common Stock, the number of shares of Common Stock, the identity of the
Selling Stockholder and the terms of offering thereof.
The Company's Common Stock is listed on the New York Stock Exchange, Inc. (the
"New York Stock Exchange") under the symbol "NEV." Any Common Stock sold by a
Selling Stockholder pursuant to a Prospectus Supplement will be listed on such
exchange. Any shares of Common Stock issuable upon conversion of any Trust
Preferred Securities, Debt Securities or Preferred Stock will also be listed on
such exchange, subject to official notice of issuance.
The Company, the Selling Stockholders and/or the Nuevo Trust may sell the
Securities directly, through agents, underwriters or dealers as designated from
time to time, or through a combination of such methods. See "Plan Of
Distribution." If agents of the Company, the Selling Stockholders and/or the
Nuevo Trust or any dealers or underwriters are involved in the sale of the
Securities in respect of which this Prospectus is being delivered, the names of
such agents, dealers or underwriters and any applicable commissions or discounts
will be set forth in or may be calculated from the Prospectus Supplement with
respect to such Securities. The net proceeds to the Company from such sale also
will be set forth in the applicable Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
IN CONNECTION WITH AN UNDERWRITTEN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, THE OVER-THE-COUNTER MARKET
2
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OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, any accompanying
Prospectus Supplement or the documents incorporated or deemed incorporated by
reference herein, and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company, the Nuevo
Trust or by any underwriter, agent or dealer. This Prospectus and any Prospectus
Supplement shall not constitute an offer to sell or a solicitation of an offer
to buy any of the Securities offered hereby in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such jurisdiction.
Neither the delivery of this Prospectus and any Prospectus Supplement nor any
sale made thereunder shall, under any circumstances, create any implication that
the information therein is correct as of any time subsequent to the date
thereof.
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 can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices located at
Citicorp Center, 500 West Madison, 14th Floor, Chicago, Illinois 60661 and Seven
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
material may also be accessed electronically by means of the Commission's home
page on the Internet at http://www.sec.gov. The Company's Common Stock is
listed on the New York Stock Exchange. Reports, proxy statements and other
information concerning the Company can be inspected and copied at the offices of
The New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company and the Nuevo Trust have filed a registration statement on Form S-3
(together with all amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
Registration Statement and the exhibits filed as part thereof. Statements
contained herein are qualified in their entirety by reference to the
Registration Statement and such exhibits.
No separate financial statements of the Nuevo Trust have been included herein.
The Company does not consider that such financial statements would be material
to holders of the Trust Preferred Securities because (i) all of the voting
securities of the Nuevo Trust will be owned, directly or indirectly, by the
Company, a reporting company under the Exchange Act, (ii) the Nuevo Trust has no
independent operations but exists for the sole purpose of issuing securities
representing undivided beneficial interests in the assets of the Nuevo Trust and
investing the proceeds thereof in Subordinated Debt Securities issued by the
Company, and (iii) the Company's obligations described herein and in any
accompanying Prospectus Supplement under the Declaration of the Nuevo Trust, the
guarantee issued with respect to Trust Preferred Securities issued by that
Trust, the Subordinated Debt Securities purchased by that Trust and the related
Indenture, taken together, constitute a full and unconditional guarantee of
payments due on the Trust Preferred Securities. See "Description Of Debt
Securities" and "Description Of Trust Preferred Securities Guarantees."
The Nuevo Trust is not currently subject to the information reporting
requirements of the Exchange Act. The Nuevo Trust will become subject to such
requirements upon the effectiveness of the Registration Statement, although it
intends to seek and expects to receive exemptions therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1995; the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 1996, June 30, 1996, and September 30, 1996, respectively; the
Company's Current Report on Form 8-K dated April 9, 1996; the description of the
Common Stock contained in the Registration Statement on Form 8-A declared
effective by the Commission on May 15, 1990; and all other documents filed by
the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(File No. 1-10537) subsequent to the date of this Prospectus
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and prior to the termination of the offering of the Securities are incorporated
herein by reference. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of any such person, a copy of all of
the documents which are incorporated herein by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to Nuevo Energy Company, 1331
Lamar, Suite 1650, Houston, Texas 77010, Attention: Corporate Secretary,
telephone number (713) 652-0706.
THE COMPANY
Nuevo is a Houston, Texas based company engaged in the exploitation, exploration
and acquisition of crude oil and natural gas properties. The Company's
properties are located domestically onshore and offshore California, in East
Texas and the onshore Gulf Coast region, and internationally in waters offshore
the Republic of Congo.
THE NUEVO TRUST
Nuevo Financing I is a statutory business trust created under Delaware law
pursuant to (i) a separate declaration of trust (as amended, the "Declaration")
executed by the Company, as sponsor for the trust (the "Sponsor") and the Nuevo
Trustees (as defined herein) for the trust and (ii) the filing of a certificate
of trust with the Delaware Secretary of State on November 15, 1996. The Nuevo
Trust exists for the exclusive purposes of (i) issuing the Trust Preferred
Securities and common securities representing undivided beneficial interests in
the assets of the Trust (the "Trust Common Securities" and, together with the
Trust Preferred Securities, the "Trust Securities"), (ii) investing the gross
proceeds of the Trust Securities in a specific series of Subordinated Debt
Securities and (iii) engaging in only those other activities necessary or
incidental thereto. All of the Trust Common Securities will be directly or
indirectly owned by the Company. The Trust Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Trust Preferred
Securities except that upon an event of default under the Declaration, the
rights of the holders of the Trust Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Trust Preferred Securities.
The Company will, directly or indirectly, acquire Trust Common Securities in an
aggregate liquidation amount equal to 3% of the total capital of the Nuevo
Trust. The Nuevo Trust has a term of approximately 35 years, but may earlier
terminate as provided in the Declaration. The Nuevo Trust's business and affairs
will be conducted by the trustees (the "Nuevo Trustees") appointed by the
Company, as the direct or indirect holder of all the Trust Common Securities.
Except in certain limited circumstances, the holder of the Trust Common
Securities will be entitled to appoint, remove or replace any of, or increase or
reduce the number of, the Nuevo Trustees. The duties and obligations of the
Nuevo Trustees shall be governed by the Declaration of the Nuevo Trust. A
majority of the Nuevo Trustees (the "Regular Trustees") will be persons who are
employees or officers of or affiliated with the Company. One Nuevo Trustee will
be a financial institution which will be unaffiliated with the Company and which
shall act as property trustee and as indenture trustee for purposes of the Trust
Indenture Act of 1939 , as amended (the "Trust Indenture Act"), pursuant to the
terms set forth in a Prospectus Supplement (the "Property Trustee"). In
addition, unless the Property Trustee maintains a principal place of business in
the State of Delaware, and otherwise meets the requirements of applicable law,
one Nuevo Trustee will have its principal place of business or reside in the
State of Delaware (the "Delaware Trustee"). The Company will pay all fees and
expenses related to the Nuevo Trust and the offering of Trust Securities. The
payment of periodic distributions with respect to the Trust Preferred Securities
out of moneys held by the Nuevo Trust, and payment on liquidation, redemption or
otherwise with respect to the Trust Preferred Securities, will be guaranteed by
the Company to the extent described herein. See "Description Of Trust Preferred
Securities Guarantee." The Company's obligations under the Trust Preferred
Securities Guarantee will be subordinate and junior in right of payment to all
other liabilities of the Company and rank pari passu with the most senior
preferred shares, if any, issued from time to time by the Company. The office
of the Delaware Trustee for the Nuevo Trust in the State of Delaware is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001. The principal place of business of the Nuevo
Trust shall be c/o Nuevo Energy Company, 1331 Lamar, Suite 1650, Houston, Texas
77010.
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USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, proceeds
from the sale of the Securities sold by the Company will be used by the Company
for general corporate purposes, which may include the repayment of existing
indebtedness. Proceeds from the sale of Securities initially may be temporarily
invested in short-term securities.
The Company will not receive any proceeds from the sale of any Common Stock by a
Selling Stockholder.
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges for the
Company for the periods indicated:
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<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------- NINE MONTHS ENDED
1993 1994 1995 SEPTEMBER 30, 1996
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Ratio of earnings to fixed charges(a)... 2.2 - 1.9 2.3
Ratio of earnings to fixed charges and
preferred stock dividends(b)... 2.0 - 1.8 2.2
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(a) For purposes of computing the ratio of earnings to fixed charges,
"earnings" are consolidated earnings (loss) from continuing before tax,
exclusive of the period's undistributed equity earnings of affiliated
companies, plus fixed charges. Fixed charges are comprised of interest on
indebtedness, amortization of debt issuance costs and that portion of
operating lease expense which is deemed to be representative of an interest
factor. Earnings were insufficient by $27.2 million to cover fixed charges
for the year ended December 31, 1994.
(b) In calculating the ratio of earnings to fixed charges and preferred stock
dividends, fixed charges includes preferred stock dividend requirements.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities will be issued under an indenture (the "Senior
Indenture") between the Company and a trustee (the "Senior Indenture Trustee");
and the Subordinated Debt Securities are to be issued under a subordinated
indenture ("Subordinated Indenture") between the Company and Wilmington Trust
Company, as trustee (the "Subordinated Indenture Trustee"). The Senior Indenture
and the Subordinated Indenture are sometimes referred to herein collectively as
the "Indentures" or, individually, as an "Indenture." The form of the
Subordinated Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part or incorporated therein by
reference. The Senior Indenture permits the Company and the Senior Indenture
Trustee, and the Subordinated Indenture permits the Company and the Subordinated
Indenture Trustee, to enter into a Supplemental Indenture to provide for the
appointment of another qualifying bank or trust company to act as trustee with
respect to a series of Senior Debt Securities or Subordinated Debt Securities,
respectively. Any such bank or trust company so appointed will be identified in
the Prospectus Supplement relating to the particular Debt Securities offered
thereby (the "Offered Debt Securities"). The Senior Indenture Trustee and the
Subordinated Indenture Trustee, as well as any such other bank or trust company
as shall have been appointed to act with respect to a series of Offered Debt
Securities, are sometimes referred to herein collectively as the "Trustees" or
individually as a "Trustee."
The Debt Securities will represent unsecured general obligations of the Company,
unless otherwise provided in the Prospectus Supplement, with the relative
rankings indicated in the applicable Prospectus Supplement.
The following summaries of certain provisions of the Debt Securities and the
Indentures do not purport to be complete and are subject to and are qualified in
their entirety by reference to all the provisions of the Indenture applicable to
a particular series of Offered Debt Securities (the "Applicable Indenture"),
including the definitions of certain terms therein. Wherever particular
Sections, Articles or defined terms of the Applicable Indenture are referred to,
it is intended that such Sections, Articles or defined terms shall be
incorporated herein by reference. Article and Section references used herein
are references to the
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Applicable Indenture or the Indentures, as the case may be. Capitalized terms
not otherwise defined herein shall have the respective meanings given to them in
the Applicable Indenture.
In the event Subordinated Debt Securities are issued to the Nuevo Trust or a
trustee of such trust in connection with the issuance of Trust Securities by the
Nuevo Trust, such Subordinated Debt Securities will be issued pursuant to the
Subordinated Indenture and subsequently may be distributed pro rata to the
holders of such Trust Securities in connection with the dissolution of the Nuevo
Trust upon the occurrence of certain events described in the Prospectus
Supplement relating to such Trust Securities. Only one series of Subordinated
Debt Securities will be issued to the Nuevo Trust or a trustee of such trust in
connection with the issuance of Trust Securities by the Nuevo Trust.
The following description sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate. The particular
terms of the Offered Debt Securities and the extent, if any, to which such
general provisions may not apply to the Offered Debt Securities will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt Securities
that may be issued thereunder and provide that Debt Securities may be issued
thereunder from time to time in one or more series. Reference is made to the
Prospectus Supplement relating to the Offered Debt Securities, which shall set
forth the following terms, as applicable, of the Offered Debt Securities: (1)
the title of the Offered Debt Securities; (2) any limit on the aggregate
principal amount of the Offered Debt Securities; (3) the price (expressed as a
percentage of the aggregate principal amount thereof) at which the Offered Debt
Securities will be issued; (4) the Person to whom any interest on the Offered
Debt Securities will be payable, if other than the Person in whose name such
Offered Debt Securities (or one or more Predecessor Securities) are registered
on any Regular Record Date; (5) the date or dates on which the principal of the
Offered Debt Securities will be payable; (6) the rate or rates per annum (which
may be fixed, floating or adjustable) at which the Offered Debt Securities will
bear interest, if any, or the formula pursuant to which such rate or rates shall
be determined, the date or dates from which such interest will accrue and the
dates on which such interest, if any, will be payable and the Regular Record
Dates for such interest payment dates; (7) the place or places where principal
of (and premium, if any) and interest, if any, on Offered Debt Securities will
be payable; (8) if applicable, the price at which, the periods within which and
the terms and conditions upon which the Offered Debt Securities may be redeemed
at the option of the Company, pursuant to a sinking fund or otherwise; (9) if
applicable, any obligation of the Company to redeem or purchase Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a holder thereof (each, a "Holder"), and the period or periods within which,
the price or prices at which and the terms and conditions upon which the Offered
Debt Securities will be redeemed or purchased, in whole or in part; (10) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Offered Debt Securities will be issuable; (11) the
currency or currencies, including composite currencies or currency units, in
which payment of the principal of (or premium, if any) or interest, if any, on
any of the Offered Debt Securities will be payable if other than the currency of
the United States of America; (12) if the amount of payments of principal of (or
premium, if any) or interest, if any, on the Offered Debt Securities may be
determined with reference to one or more indices, the manner in which such
amounts will be determined; (13) if the principal of (or premium, if any) or
interest, if any, on any of the Offered Debt Securities of the series is to be
payable, at the election of the Company or a Holder thereof, in one or more
currencies, including composite currencies, or currency units other than that or
those in which the Offered Debt Securities are stated to be payable, the
currency, currencies, including composite currencies, or currency units in which
payment of the principal of (or premium, if any) or interest, if any, on Offered
Debt Securities of such series as to which such election is made will be
payable, and the periods within which and the terms and conditions upon which
such election is to be made; (14) the portion of the principal amount of the
Offered Debt Securities, if other than the entire principal amount thereof,
payable upon acceleration of maturity thereof; (15) whether all or any part of
the Offered Debt Securities will be issued in the form of a permanent Global
Security or Securities, as described under "Permanent Global Securities," and,
if so, the depositary for, and other terms relating to, such permanent Global
Security or Securities; (16) any event or events of default applicable with
respect to the Offered Debt Securities in addition to those provided in the
Applicable Indenture; (17) any other covenant or warranty included for the
benefit of the Offered Debt Securities in addition to (and not inconsistent
with) those included in the Indentures for the benefit of Debt Securities of all
series, or any other covenant or warranty included for the benefit of the
Offered Debt Securities in lieu of any covenant or warranty included in the
Indenture for the benefit of Offered Debt Securities, or any combination of such
covenants, warranties or provisions; (18) any restriction or condition on the
transferability of the Offered Debt Securities; (19) if applicable, that such
Offered Debt Securities, in whole or any specified part, are defeasible pursuant
to the provisions of the Applicable Indenture
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described under "Defeasance and Covenant Defeasance"; (20) any authenticating or
paying agents, registrars, conversion agents or any other agents with respect to
the Offered Debt Securities; (21) designation (including whether the Offered
Debt Securities are senior debt, senior subordinated debt or subordinated debt
and whether such debt is convertible); (22) the terms, if any, on which such
Offered Debt Securities will be subordinate to other debt of the Company; (23)
any rights of the Holders thereof to convert such Offered Debt Securities into
other securities or property of the Company; and (24) any other specific terms
or provisions of the Offered Debt Securities not inconsistent with the
Applicable Indenture. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000. (Section
302). No service charge will be made for any transfer or exchange of such
Offered Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(Section 305)
Debt Securities may be issued under the Indentures as Original Issue Discount
Debt Securities to be offered and sold at a substantial discount below their
stated principal amount. Special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Debt Security" means any security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the maturity thereof upon
the occurrence and continuance of an Event of Default. (Section 101)
If the Debt Securities are denominated in whole or in part in any currency other
than United States dollars, if the principal of (and premium, if any) or
interest, if any, on the Debt Securities is to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies other than that in
which such Debt Securities are to be payable, or if any index is used to
determine the amount of payments of principal of, premium, if any, or interest
on any series of the Debt Securities, special Federal income tax, accounting and
other considerations applicable thereto will be described in the Prospectus
Supplement relating thereto.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment of
interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest payment. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement, principal of
and any premium and interest on the Debt Securities of a particular series will
be payable at the office of such Paying Agent or Paying Agents as the Company
may designate for such purpose from time to time, except that, at the option of
the Company, payment of any interest may be made by check mailed to the address
of the Person entitled thereto as such address appears in the Security Register.
Unless otherwise indicated in the applicable Prospectus Supplement, the
corporate trust office of the applicable Trustee in New York, New York will be
designated as the Company's sole Paying Agent for payments with respect to Debt
Securities of each series.
Any other Paying Agents initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each place of payment for the Debt Securities of a
particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. Upon any payment
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or distribution of assets to creditors upon any liquidation, dissolution,
winding up, reorganization, assignment for the benefit of creditors, marshaling
of assets or any bankruptcy, insolvency, debt restructuring or similar
proceedings in connection with any insolvency or bankruptcy proceeding of the
Company the holders of Senior Indebtedness will first be entitled to receive
payment in full of principal of (and premium, if any) and interest, if any, on
such Senior Indebtedness before the holders of the Subordinated Debt Securities
will be entitled to receive or retain any payment in respect of the principal of
(and premium, if any) or interest, if any, on the Subordinated Debt Securities.
(Subordinated Indenture Section 1502)
By reason of such subordination, in the event of liquidation or insolvency,
Holders of Subordinated Debt Securities may recover less, ratably, than holders
of Senior Indebtedness and holders of Senior Indebtedness may recover more,
ratably, than the holders of the Subordinated Debt Securities. With respect to
any series of Subordinated Debt Securities, Senior Indebtedness may include
Indebtedness which is senior to such Subordinated Debt Securities and
subordinated to other Senior Indebtedness and obligations of the Company.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the holders of all Senior Indebtedness (including any Senior
Subordinated Indebtedness) outstanding at the time of such acceleration will
first be entitled to receive payment in full of all amounts due thereon before
the Holders of Subordinated Debt Securities will be entitled to receive any
payment upon the principal of (or premium, if any) or interest, if any, on the
Subordinated Debt Securities. (Subordinated Indenture Section 1503)
No payments on account of principal (or premium, if any) or interest, if any, in
respect of the Subordinated Debt Securities may be made if there shall have
occurred and be continuing (i) a default in the payment of principal of (or
premium, if any) or interest on Senior Indebtedness, (ii) an event of default
with respect to any Senior Indebtedness resulting in the acceleration of the
maturity thereof, or (iii) any other event of default permitting the holders of
Senior Indebtedness to accelerate the maturity or demand payment in full.
(Subordinated Indenture Section 1504)
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include Senior Subordinated
Indebtedness.
The applicable Prospectus Supplement may further describe the provisions, if
any, applicable to the subordination of the Subordinated Debt Securities of a
particular series. If the Senior Debt Securities are issued on a senior
subordinated basis, the applicable Prospectus Supplement will describe the
related subordination provisions. All Senior Debt Securities, whether issued on
a senior or senior subordinated basis, will be senior in right of payment to
each series of Subordinated Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
RESTRICTIONS ON MERGER AND SALE OF ASSETS
Each Indenture provides that the Company may not consolidate with or merge into
any other Person or sell, lease or otherwise transfer its property and assets
as, or substantially as, an entirety to any Person, and the Company may not
permit any Person to merge into or consolidate with the Company unless (i)
either (A) the Company will be the resulting or surviving entity or (B) any
successor or purchaser is a corporation, partnership, limited liability company
or trust organized under the laws of the United States of America, any State or
the District of Columbia, and any such successor or purchaser expressly assumes
the Company's obligations on the Debt Securities under a supplemental indenture;
(ii) immediately after giving effect to the transaction no Event of Default, and
no event which after notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing; and (iii) certain other
conditions are met. (Section 801). Upon any consolidation or merger into any
other Person or any conveyance, transfer or lease of the Company's assets as, or
substantially as, an entirety to any Person, the successor Person shall succeed
to, and be substituted for, the Company under the Indenture, and the Company,
except in the case of a lease, shall be relieved of all obligations and
covenants under the Indenture and the Debt Securities to the extent it was the
predecessor Person. (Section 802)
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CONVERSION RIGHTS
The terms and conditions, if any, upon which Debt Securities are convertible
into Common Stock, Preferred Stock or other securities of the Company will be
set forth in the applicable Prospectus Supplement relating thereto. Such terms
will include the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the Holders or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of redemption of such
Debt Securities.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of Debt Securities, the following events are defined in the Indentures as
"Events of Default" with respect to Debt Securities of any series: (a) failure
to pay principal (including any sinking fund payment) of (or premium, if any,
on) any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c) failure
to perform any other covenant or agreement of the Company under the Applicable
Indenture (other than a covenant the performance of which is dealt with
specifically elsewhere in the Applicable Indenture or which has been included in
the Applicable Indenture solely for the benefit of a series of Debt Securities
other than that series), continued for 60 days after written notice as provided
in the Applicable Indenture; (d) certain events of bankruptcy, insolvency or
reorganization; (e) in the event Subordinated Debt Securities are issued to the
Nuevo Trust or a trustee of such trust in connection with the issuance of Trust
Securities by the Nuevo Trust, the voluntary or involuntary dissolution,
winding-up or termination of the Nuevo Trust, except in connection with the
distribution of Subordinated Debt Securities to the holders of Trust Securities
in liquidation of the Nuevo Trust, the redemption of all of the Trust Securities
of the Nuevo Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of the Nuevo Trust; and (f) any other Event of
Default provided with respect to Debt Securities of that series. (Section 501)
Except as defined in the Prospectus Supplement relating thereto, no Event of
Default with respect to Debt Securities of a particular series shall necessarily
constitute an Event of Default with respect to Debt Securities of any other
series. (Section 501) The Holders of a majority in principal amount of
the Outstanding Debt Securities of any series shall have the right, subject to
such provisions for indemnification of the Trustee, to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
under the Applicable Indenture or exercising any trust or power conferred on the
Trustee with respect to Debt Securities of that series. (Section 512)
If an Event of Default (other than an Event of Default specified in clause (d)
of the second preceding paragraph) with respect to Debt Securities of any series
at the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series may, by a notice in writing to the Company (and to the Trustee if
given by the Holders), declare the principal amount (or, if the Debt Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all Debt
Securities of that series to be due and payable immediately; provided, however,
that under certain circumstances the Holders of a majority in aggregate
principal amount of Outstanding Debt Securities of that series may rescind or
annul such declaration and its consequences. (Section 502). If an Event of
Default specified in clause (d) of the next preceding paragraph occurs, the
outstanding Debt Securities automatically will become immediately payable
without any declaration or other act on the part of the Trustee or any Holder.
(Section 502). For information as to waiver of defaults, see "Modification and
Waiver" herein.
Reference is made to the Prospectus Supplement relating to any series of Offered
Debt Securities which are Original Issue Discount Securities for the particular
provisions relating to the principal amount of such Original Issue Discount
Securities due on acceleration upon the occurrence of an Event of Default and
the continuation thereof.
No Holder of a Debt Security of any series will have any right to institute any
proceeding with respect to the Applicable Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the applicable
Trustee written notice of a continuing Event of Default with respect to Debt
Securities of that series and unless also the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of the same series shall
have made written request, and offered reasonable indemnity to the applicable
Trustee, to institute such proceeding as trustee, and the applicable Trustee
shall not have received from the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of the same series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Section 507). However, such limitations do not apply
to a suit instituted by a
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Holder of any Debt Security for enforcement of payment of the principal of (or
premium, if any) or interest, if any, on such Debt Security on or after the
respective due dates expressed in such Debt Security. (Section 508)
Subject to the provisions of the Trust Indenture Act, the Trustee will be under
no obligation to exercise any of its rights or powers under the Applicable
Indenture at the request of any of the Holders of Debt Securities unless they
shall have offered to the applicable Trustee security or indemnity in form and
substance reasonably satisfactory to such Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request.
(Section 603)
The Company will be required to furnish to each Trustee annually a statement by
certain officers of the Company as to whether the Company is in default in the
performance and observance of any of the terms, provisions and conditions of the
Applicable Indenture. (Section 1004)
Notwithstanding anything in the Indentures to the contrary, the right of any
Holder of a Debt Security to receive payment of the principal of (or premium, if
any) and interest on such Debt Security, on and after the respective due dates
expressed in such Debt Security (as the same may be extended in accordance with
the terms of such Debt Security) or to institute suit for the enforcement of any
such payment shall not be impaired or affected without the consent of such
Holder, including, in the case of a Subordinated Debt Security issued to the
Nuevo Trust, the holders of the Trust Preferred Securities. In addition, in the
case of a Subordinated Debt Security issued to the Nuevo Trust, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal (or premium, if any) then a
holder of Trust Preferred Securities may directly institute a proceeding against
the Company for payment.
MODIFICATION AND WAIVER
Each Indenture will provide that modifications and amendments of such Indenture
may be made by the Company and the applicable Trustee, with the consent of the
Holders of not less than a majority in principal amount of each series
of the Outstanding Debt Securities under such Indenture affected by the
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Outstanding Debt
Security affected thereby: (a) change the Stated Maturity of the principal of
(or premium, if any) or any installment of principal or interest, if any, on any
such Debt Security; (b) reduce the principal amount of (or premium, if any) or
the interest rate, if any, on any such Debt Security or the principal amount due
upon acceleration of an Original Issue Discount Security; (c) adversely affect
any right of repayment at the option of the Holder of any such Debt Security;
(d) reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation; (e) change the place or currency of
payment of principal of (or premium, if any) or the interest, if any, on any
such Debt Security; (f) impair the right to institute suit for the enforcement
of any such payment on or with respect to any such Debt Security on or after the
Stated Maturity (or, in the case of redemption, on or after the Redemption
Date); (g) reduce the percentage of the aggregate principal amount of
Outstanding Debt Securities of any series, the consent of the Holders of which
is necessary to modify or amend the Applicable Indenture; or (h) modify the
foregoing requirements or reduce the percentage of Outstanding Debt Securities
necessary to waive compliance with certain provisions of the Applicable
Indenture or for waiver of certain defaults. (Section 902)
The Holders of at least a majority of the principal amount of the Outstanding
Debt Securities of any series may, on behalf of all Holders of that series,
waive compliance by the Company with certain restrictive provisions of the
Applicable Indenture and waive any past default under such Indenture, except a
default in the payment of principal, premium or interest or in the performance
of certain covenants. (Sections 1008 and 513)
If the Nuevo Trust or the Property Trustee of the Nuevo Trust holds a series of
Subordinated Debt Securities no such amendment, modification or waiver which
requires the approval of the Holders of a certain percentage in principal amount
of such series of Subordinated Debt Securities shall be effective without the
approval of the holders of the same percentage of aggregate liquidation
preference of Trust Preferred Securities.
Each Indenture provides that a supplemental indenture which changes or
eliminates any covenant or other provision of such Indenture which has expressly
been included solely for the benefit of one or more particular series of Debt
Securities, or which modifies the rights of the Holders of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under such Indenture of the Holders of Debt Securities of any other
series. (Section 902)
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Each Indenture provides that modifications and amendments of such Indenture may
be made by the Company and the applicable Trustee, without the consent of the
Holders of any series of Debt Securities issued thereunder: (1) to evidence the
succession of another Person to the Company in accordance with the covenant
described under "Restrictions on Merger and Sale of Assets" and assumption by
any such successor of the covenants of the Company in such Indenture and in the
Debt Securities issued thereunder; (2) to add to the covenants of the Company or
to add any additional Events of Default; (3) to permit or facilitate the
issuance of Debt Securities in bearer form or to provide for uncertificated Debt
Securities to be issued thereunder; (4) to change or eliminate any provision of
such Indenture, provided that any such change or elimination shall become
effective only when there are no Debt Securities outstanding of any series
created prior to the execution of such supplemental indenture which are entitled
to the benefit of such provision; (5) to secure any Debt Securities issued
thereunder; (6) to establish the form or terms of Debt Securities issued
thereunder; (7) to evidence and provide for a successor trustee under such
Indenture with respect to one or more series of Debt Securities issued
thereunder or to provide for or facilitate the administration of the trusts
under such Indenture by more than one trustee; or (8) to cure any ambiguity, to
correct or supplement any provision in such Indenture that may be inconsistent
with any other provision of such Indenture or to make any other provisions with
respect to matters or questions arising under such Indenture, provided that such
action shall not adversely affect the interests of the Holders of any series of
Debt Securities issued thereunder. (Section 901)
The Indentures provide that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given or
taken any direction, notice, consent, waiver or other action under the Indenture
as of any date, (i) the principal amount of an Original Issue Discount Debt
Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date; (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security; and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
United States dollar equivalent, determined as of such date in the manner
prescribed for such Debt Security, of the principal amount of such Debt Security
(or, in the case of a Debt Security described in clause (i) or (ii) above, of
the amount described in such clause). Certain Debt Securities, including those
for which payment or redemption money has been deposited or set aside in trust
for the Holders and those that have been fully defeased pursuant to the
Applicable Indenture, will not be deemed to be Outstanding. (Section 101) For
purposes of the Indentures, the Debt Securities of any series "Outstanding"
thereunder are deemed to exclude those held by Persons (other than the Nuevo
Trust if it has issued Trust Preferred Securities) that control, are controlled
by or are under common control with the Company; provided that any Person who
does not own, directly or indirectly, more than 5% of the outstanding voting
securities of the Company will not be deemed to control the Company. (Section
101)
Except in certain limited circumstances, the Company will be entitled to set any
day as a record date for the purpose of determining the Holders of Outstanding
Debt Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the Indentures, in the manner and subject
to the limitations provided in the Applicable Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Debt Securities of that series on the record date. To be effective,
such action must be taken by Holders of the requisite principal amount of such
Debt Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such shorter period as
may be specified by the Company (or the Trustee, if it set the record date), and
may be shortened or lengthened (but not beyond 180 days) from time to time.
(Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 301 of the Indentures (which will
be indicated in the Prospectus Supplement applicable thereto), that the Company
may elect either (A) to defease and be discharged from any and all obligations
with respect to such Debt Securities then outstanding (except for the
obligations to exchange or register the transfer of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency in respect of the Debt Securities, and to hold
monies for payments in trust) ("defeasance"), or (B) to be released from its
obligations with respect to such Debt Securities concerning the restrictions
described under "Restrictions on Merger and Sale of Assets" (Section 801) and
any other covenants applicable to such Debt Securities which are subject to
covenant defeasance ("covenant defeasance"), and the occurrence of an event
described and notice thereof in clause (c) under
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"Events of Default and Notice Thereof" (with respect to covenants determined,
pursuant to Section 301 of the Applicable Indenture, to be subject to covenant
defeasance) shall no longer be an Event of Default, in each case, upon the
irrevocable deposit with the applicable Trustee (or other qualifying trustee),
in trust for such purpose, of money, and/or U.S. Government Obligations (as
defined in the Indentures) which through the payment of principal and interest
in accordance with their terms will provide money in an amount sufficient
without reinvestment to pay the principal of (and premium, if any) and interest,
if any, on such Debt Securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor. Such a trust may only be
established if, among other things, (i) the Company has delivered to the
applicable Trustee an opinion of counsel (as specified in the Applicable
Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance or covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, (ii) no
Event of Default or event which with the giving of notice or lapse of time, or
both, would become an Event of Default under the Indenture shall have occurred
and be continuing on the date of such deposit or, insofar as Events of Default
from bankruptcy, insolvency or reorganization events are concerned, at any time
in the period ending on the 91st day after such date of deposit and (iii)
certain other customary conditions precedent are satisfied. In the case of
defeasance under clause (A) above, the opinion of counsel referred to in clause
(i) above must refer to and be based on a ruling of the Internal Revenue Service
issued to the Company or published as a revenue ruling or on a change in
applicable federal income tax law, in each case after the date of such
Indenture. (Article Thirteen)
The Company may exercise the defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of the covenant defeasance option.
If the Company exercises the defeasance option, payment of such Debt Securities
may not be accelerated because of an Event of Default. If the Company exercises
the covenant defeasance option, payment of such Debt Securities may not be
accelerated by reference to the covenants noted under clause (B) above. In the
event the Company omits to comply with the remaining obligations with respect to
such Debt Securities under such Indenture after exercising its covenant
defeasance option and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations on deposit with the applicable Trustee may be
insufficient to pay amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default, because the
required deposit in the defeasance trust is based upon scheduled cash flows,
rather than market values, which will vary depending on prevailing interest
rates and other factors. However, the Company will remain liable in respect of
such payments. (Article Thirteen)
The Prospectus Supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Debt
Securities of a particular series.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indentures. Reference is made to the Applicable Indenture with respect to any
particular series of Debt Securities for the full definition of all such terms,
as well as any other terms used herein for which no definition is provided.
(Section 101)
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however, designated) in such Person, any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest in
such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or other amounts
under a lease of (or other agreement conveying the right to use) any property
(whether real, person or mixed) that is required to be classified and accounted
for as a capital lease obligation under GAAP.
"GAAP" means generally accepted accounting principles, consistently applied,
that are set forth in the opinions and pronouncements of the Accounting
Principles Board of the American institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States of America, which are
effective on the date of this Indenture.
"Indebtedness" means, with respect to any Person, without duplication, (a) all
liabilities of such Person for borrowed money or for the deferred purchase price
of property or services (excluding any trade accounts payable and other accrued
current liabilities incurred in the ordinary course of business), and all
liabilities of such Person incurred in connection with any letters of credit,
bankers' acceptances or other similar
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credit transactions or any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock outstanding on the date of the
Subordinated Indenture or thereafter, (b) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (c) all
Indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even if the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), but
excluding trade accounts payable arising in the ordinary course of business, (d)
all Capitalized Lease Obligations of such Person, (e) all Indebtedness referred
to in the preceding clauses of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holder of such Indebtedness
has an existing right to be secured by) and lien upon property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness (the amount of such obligation being deemed to be the lesser of the
value of such property or asset or the amount of the obligation so secured), (f)
all guarantees by such Person of Indebtedness referred to in this definition
(including, with respect to any Production Payments and Reserve Sales, any
warranties or guaranties of production or payment by such Person with respect to
such Production Payments and Reserve Sales but excluding other contractual
obligations of such Person with respect to such Production Payments and Reserve
Sales ), (g) all Redeemable Capital Stock of such Person valued at the greater
of its voluntary or involuntary maximum fixed repurchase price plus accrued
dividends and (h) all obligations of such Person under or in respect of currency
exchange contracts, oil or natural gas price hedging arrangements and Interest
Rate Protection Obligations. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to the
Subordinated Indenture, and if such price is based upon, or measured by, the
fair market value of such Redeemable Capital Stock, such fair market value shall
be determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock; provided, however, that if such Redeemable Capital
Stock is not at the date of determination permitted or required to be
repurchased, the "maximum fixed repurchase price" shall be the book value of
such Redeemable Capital Stock. Subject to clause (f) of the first sentence of
this definition, Production Payments and Reserve Sales shall not be deemed
Indebtedness.
"Interest Rate Protection Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements or arrangements designed to protect
against or manage such Person's and any of its Subsidiaries' exposure to
fluctuations in interest rates.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Production Payments and Reserve Sales" means the grant or transfer to any
Person of a royalty, overriding royalty, net profits interest, production
payment (whether volumetric or dollar denominated), master limited partnership
interest or other interest in oil and gas properties, reserves or the right to
receive all or a portion of the production or the proceeds from the sale of
production attributable to such properties where the holder of such interest has
recourse solely to such production or proceeds of production, subject to the
obligation of the grantor or transferor to operate and maintain, or cause the
subject interest to be operated and maintained, in a reasonably prudent manner
or other customary standard or subject to the obligation of the grantor or
transferor to indemnify for environmental matters.
"Redeemable Capital Stock" means any Capital Stock that, either by its terms, by
the terms of any security into which it is convertible or exchangeable or by
contract or otherwise, is, or upon the happening of an event or passage of time
would be, required to be redeemed prior to the final date specified in the
Subordinated Debt Securities as the fixed date on which the principal of such
Subordinated Debt Securities is due and payable ("Stated Maturity") or is
redeemable at the option of the holder thereof at any time prior to such final
Stated Maturity, or is convertible into or exchangeable for debt securities at
any time prior to such final Stated Maturity.
"Senior Indebtedness" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent that such
claim for post-petition interest is allowed in such proceeding), on any
Indebtedness
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of the Company, whether incurred on or prior to the date of the Applicable
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Offered Debt
Securities, or to other Indebtedness of the Company which is pari passu with, or
subordinated to the Offered Debt Securities; provided, however, that Senior
Indebtedness shall not be deemed to include the Offered Debt Securities or any
Indebtedness of the Company to any Subsidiary of the Company. (Subordinated
Indenture Section 101)
"Subsidiary" of any Person means (i) a corporation more than 50% of the combined
voting power of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, have at least a majority ownership and power to
direct the policies, management and affairs thereof.
PERMANENT GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
permanent Global Securities that will be deposited with a Depositary or its
nominee. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Security or Securities. The Prospectus Supplement relating to
such series of Debt Securities will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent Global Security may
exchange such interests for Debt Securities of such series and of like tenor and
principal amount in any authorized form and denomination. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a permanent Global Security may not be registered for transfer or exchange
except in the circumstances described in the applicable Prospectus Supplement.
(Sections 204 and 305)
The specific terms of the depositary arrangement with respect to any portion of
a series of Debt Securities to be represented by a permanent Global Security and
a description of the Depositary will be contained in the applicable Prospectus
Supplement.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and construed in
accordance with the internal laws of the State of New York. (Section 112)
DESCRIPTION OF CAPITAL STOCK
GENERAL
The following description of the capital stock of the Company is subject to the
detailed provisions of the Company's Certificate of Incorporation, as amended
(the "Certificate"), and bylaws as currently in effect (the "Bylaws"). This
description does not purport to be complete or to give full effect to the terms
of the provisions of statutory or common law and is subject to, and qualified in
its entirety by reference to, the Certificate of Incorporation and the Bylaws,
each of which are filed as an exhibit to the Registration Statement of which
this Prospectus is a part.
COMMON STOCK
The Company has 50,000,000 authorized shares of Common Stock, par value $.01 per
share. Holders of Common Stock are entitled to receive dividends if, when and as
declared by the Board of Directors of the Company out of funds legally available
therefor. All shares of Common Stock have equal voting rights on the basis of
one vote per share on all matters to be voted upon by stockholders. Cumulative
voting for the election of directors is not permitted. Shares of Common Stock
have no preemptive, conversion, sinking fund or redemption provisions and are
not liable for further call or assessment. Each share of Common Stock is
entitled to share on a pro rata basis in any assets available for distribution
to the holders of the Common Stock upon liquidation of the Company after
satisfaction of any liquidation preference on any series of the Company's
preferred stock. All outstanding shares of Common Stock have been, and all
shares offered in any offering of Offered Securities will be when issued,
validly issued, fully paid and nonassessable. As of November 8, 1996, there
were 18,976,085 shares of Common Stock issued and outstanding. As of November 8,
1996, a total of 4,863,493 shares of Common Stock were reserved for issuance
of which (a) 863,493 shares were reserved for conversion of the 7% Preferred
Stock (as defined
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below), (b) 1,500,000 shares were reserved for exercise of stock options under
the 1990 Stock Option Plan ("1990 Plan") and (c) 2,500,000 shares were reserved
for issuance of options under the Company's 1993 Stock Incentive Plan ("1993
Plan"). As of the date hereof, options to purchase 556,150 and 964,788
shares of Common Stock were outstanding under the 1990 Plan and the 1993 Plan,
respectively. On April 9, 1996, the Company issued warrants to purchase 150,000
shares of Common Stock. These warrants are initially exercisable at $28 per
share and have a maximum term of five years.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which a Prospectus
Supplement may relate. Specific terms of any series of Preferred Stock offered
by a Prospectus Supplement will be described in the Prospectus Supplement
relating to such series. The description set forth below is subject to and
qualified in its entirety by reference to the certificate of designations
establishing a particular series of Preferred Stock, which will be filed with
the Commission in connection with the offering of such series.
Under the Certificate, the Board of Directors of the Company is authorized,
without further stockholder action, to provide for the issuance of up to
10,000,000 shares of Preferred Stock in one or more series. As of the date of
this Prospectus, the 7% Preferred Stock is the only series of Preferred Stock
issued and outstanding. The rights, preferences, privileges, and restrictions,
including dividend rights, voting rights, conversion rights, terms of
redemption, and liquidation preferences, of the Preferred Stock of each series
will be fixed or designated by the Board of Directors pursuant to a certificate
of designations. The specific terms of a particular series of Preferred Stock
offered hereby will be described in a Prospectus Supplement relating to such
series and will include the following: (a) the maximum number of shares to
constitute the series and the distinctive designation thereof; (b) the annual
dividend rate, if any, on shares of the series (or the method of calculating
such rate), whether such rate is fixed or variable or both, the date or dates
from which dividends will begin to accrue or accumulate, and whether dividends
will be cumulative; (c) whether the shares of the series will be redeemable and,
if so, the price at and the terms and conditions on which such shares may be
redeemed, including the time during which such shares may be redeemed and any
accumulated dividends thereon that the holders of such shares shall be entitled
to receive upon the redemption thereof; (d) the liquidation preference, if any,
applicable to shares of the series; (e) whether the shares of the series will be
subject to operation of a retirement or sinking fund and, if so, the extent and
manner in which any such fund shall be applied to the purchase or redemption of
such shares for retirement or for other corporate purposes, and the terms and
provisions relating to the operation of such fund; (f) the terms and conditions,
if any, on which the shares of the series will be convertible into, or
exchangeable for, shares of any other class or classes of capital stock of the
Company, the Nuevo Trust or another issuer or any series of any other class or
classes, or of any other series of the same class, including the price or rate
of conversion or exchange and the method, if any, of adjusting the same; (g) the
voting rights, if any, on the shares of the series; and (h) any other
preferences and relative, participating, optional, or other special rights or
qualifications, limitations, or restrictions thereof.
Each series of Preferred Stock will, when issued, be fully paid and non-
assessable.
The transfer agent, registrar, and dividend disbursement agent for a series of
Preferred Stock will be selected by the Company and will be described in the
applicable Prospectus Supplement.
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7% CUMULATIVE CONVERTIBLE PREFERRED STOCK
On May 28, 1992, the Company sold $25,000,000 of 7% Cumulative Convertible
Preferred Stock, $1.00 par value per share, Series A and B (collectively, the
"7% Preferred Stock") to The 1818 Fund, L.P. ("1818 Fund"). The Company issued
22,500 shares and 2,500 shares of 7% Preferred Stock, Series A and Series B,
respectively. As of November 8, 1996, there were 11,220 shares of 7%
Preferred Stock issued and outstanding. The 7% Preferred Stock, Series B, has
the same powers, preferences, rights, qualifications and restrictions as the 7%
Preferred Stock, Series A. The holders of the 7% Preferred Stock are entitled
to receive dividends payable in arrears as of the last day of March, June,
September and December. The 7% Preferred Stock is convertible into shares of
Common Stock equal to the liquidation preference of $1,000 per share divided by
a current conversion price of approximately $13 per share, subject to
adjustment. 9,881 Series A shares were converted into Common Stock on September
21, 1995. Upon a change of control (as defined in the Designation establishing
the shares), dividends on the 7% Preferred Stock will be payable at a rate of
14% per annum. The holders of the 7% Preferred Stock are entitled to vote with
the Common Stock on all matters except that the holders of the 7% Preferred
Stock have separate class voting rights on certain matters that affect the
rights of such holders, and are entitled to certain registration rights. The
Company may redeem the 7% Preferred Stock on or after June 30, 1997, at a price
per share equal to the liquidation preference plus a 4% premium that decreases
ratably to zero after five years. Upon a change of control, the Company has the
option to redeem the 7% Preferred Stock at a price per share equal to 125% of
the liquidation preference plus accrued and unpaid dividends, if such redemption
occurs prior to June 30, 1997. The holders of the 7% Preferred Stock have the
right to convert the shares of 7% Preferred Stock into Common Stock on or after
May 28, 1999 through May 28, 2002, at an adjusted price based on the market
price of the Common Stock subject to certain limitations, including a minimum
price of $10.00 per share. The holders of the 7% Preferred Stock have the right
to appoint a representative to the Company's Board of Directors in the event the
Company fails to pay dividends for two quarters (whether consecutive or not) or
breaches certain provisions of the stock purchase agreement.
In connection with the acquisition of the 7% Preferred Stock, the Company and
the 1818 Fund entered into a registration rights agreement pursuant to which the
Company agreed to register, on three occasions upon demand by the 1818 Fund, the
Preferred Stock or the Common Stock into which such Preferred Stock is
convertible. The agreement also grants the 1818 Fund "piggy back" registration
rights to include Preferred Stock or shares of Common Stock received upon
conversion thereof in certain registration statements filed by the Company, and
the 1818 Fund has exercised such rights with respect to all of its shares of
Common Stock covered by this Prospectus. See "Selling Stockholders."
CERTAIN ANTI-TAKEOVER PROVISIONS
GENERAL
The Certificate contains several provisions that may make the acquisition of
control of the Company by means of a tender offer, open market purchases, a
proxy fight or otherwise more difficult. The Bylaws also contain provisions that
could have an anti-takeover effect. Many of the following provisions contain
requirements for a vote of 80% or more of the Company's stockholders.
BOARD OF DIRECTORS
Classified Board of Directors. The Certificate and Bylaws provide for the
Company's board of directors (the "Board of Directors") to be divided into three
classes of directors serving staggered three-year terms. As a result,
approximately one-third of the Board of Directors is elected each year. The
classification of directors will have the effect of making it more difficult for
stockholders of the Company to change the composition of the Board of Directors
in a relatively short period of time. At least two annual meetings of
stockholders, instead of one, will generally be required to effect a change in a
majority of the directors of the Board of Directors. The classified Board of
Directors provision could have the effect of discouraging a third party from
making a tender offer or otherwise attempting to obtain control of the Company,
even though such an attempt might be beneficial to the Company and its
stockholders. The classified Board of Directors provision could thus increase
the likelihood that incumbent directors will retain their positions.
Number of Directors. The Bylaws provide that the number of directors shall be
not less than three nor more than twenty-one directors, the exact number to be
fixed from time to time by either (i) the Board of Directors, (ii) the
affirmative vote of 80% or more of the voting power of the shares of the Company
or (iii) the Certificate. Accordingly, the Board of Directors could prevent any
stockholder from obtaining
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majority representation on the Company's Board of Directors by enlarging the
size of the Board of Directors and filling the new directorships with the Board
of Directors' own nominees.
Removal of Directors. The Certificate provides that, subject to the rights of
the holders of any series of any preferred stock then outstanding, any director
or the entire Board of Directors may be removed from office at any annual or
special meeting called for such purpose, and then only for cause and only by the
affirmative vote of the holders of 80% or more of the voting power of all the
shares of the Company entitled to vote generally in the election of directors,
voting together as a single class. For purposes of director removal, cause means
only the following: conviction of a felony, proof beyond the existence of a
reasonable doubt that a director has committed grossly negligent or willful
misconduct resulting in material detriment to the Company or commission of a
material breach of fiduciary duty to the Company resulting in a material
detriment to the Company.
The removal of directors provisions could have the effect of discouraging a
third party from attempting to obtain control of the Company, even though such
an attempt might be beneficial to the Company and its stockholders. This
provision could also affect the ability of the stockholders of the Company to
remove incumbent directors and thus may increase the likelihood that incumbent
directors will retain their positions.
Newly-Created Directorships and Vacancies. Subject to the rights of the holders
of any series of any preferred stock then outstanding, newly-created
directorships resulting from any increase in the authorized number of directors
and any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
by a majority vote of the directors then in office even though less than a
quorum, or by a sole remaining director. The newly-created directorship and
vacancy provisions could prevent a stockholder from obtaining a position on the
Board of Directors. These provisions could also have the effect of making it
more difficult for stockholders to change the composition of the Board of
Directors of the Company.
SPECIAL MEETINGS
The Bylaws provide that special meetings of stockholders may be called only by
the President, or by the Board of Directors or by the written order of a
majority of the directors, and shall be called by the President or Secretary at
the request in writing of stockholders owning 80% or more of the entire capital
stock of the Company issued and outstanding and entitled to vote. Accordingly,
holders of a significant percentage of the outstanding capital stock of the
Company may not be able to request a special meeting of the stockholders.
COMMON AND PREFERRED STOCK
The Certificate authorizes the Board of Directors to determine, with respect to
any series of Preferred Stock of the Company, the terms and rights of
such series, including the following: (i) the designation of such series and the
number of shares which shall constitute such series, (ii) the rate and time of,
and conditions with respect to, dividends, and whether such dividends are
cumulative, (iii) the price, timing and conditions regarding the redemption of
shares of such series, (iv) the rights and preferences of shares of such series
in the event of dissolution, liquidation or winding up of the affairs of the
Company, (v) the sinking fund provisions, if any, for the redemption or purchase
of shares of such series, (vi) the voting rights, if any, of shares of such
series, (vii) the right, if any, to convert or exchange shares of such series
into or for stock or securities of any other series or class, (viii) the status
as to, re-issuance or sale of such shares redeemed, purchased or otherwise
reacquired, or surrendered to the Company on conversion, (ix) the conditions and
restrictions, if any, on the payment of dividends or on the making of other
distributions on, or the purchase, redemption or other acquisition by the
Company or any subsidiary, of Common Stock or of any other class of stock of the
Company ranking prior to such shares as to dividends or upon liquidation, (x)
the conditions, if any, on the creation of indebtedness of the Company or any
subsidiary and (xi) any other preferences or other special or relative rights of
shares of such series. The Certificate provides that the Common Stock of the
Company shall be junior to the Preferred Stock and is subject to all the rights,
privileges, preferences and priorities of the preferred stock as set forth in
the Certificate or as determined by the Board of Directors, including the
issuance of dividends and distribution of assets in the event of liquidation,
dissolution or winding up. The exclusive voting power of the Company shall be
vested in the Common Stock of the Company, subject to any particular class or
series of Preferred Stock with additional voting rights. No holder of any stock
of any class of the Company shall, as such holder, have any right to purchase or
subscribe for any shares of the capital stock of any class of securities which
the Company may issue or sell, nor shall any holder of any such stock have any
right to purchase or subscribe for any obligation which the Company may issue or
sell that shall be convertible into, or exchangeable for, any shares of the
capital stock of the Company, or to
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which shall be attached any warrant or instrument that shall confer upon the
owner of such obligation, warrant or instrument the right to subscribe for, or
to purchase from the company any shares of its capital stock of any class.
The preemptive rights and the Preferred Stock provisions could have the effect
of diluting the voting rights of the Common Stockholders of the Company by
placing voting power in the hands of Preferred Stockholders to the exclusion of
the Common Stockholders.
The Company believes that the availability of Preferred Stock provides it with
increased flexibility in structuring possible future financing and acquisitions,
and in meeting other corporate needs which might arise. Having such authorized
shares available for issuance will allow the Company to issue shares of
Preferred Stock without the expense and delay of a special stockholders'
meeting. The authorized shares of Preferred Stock as well as shares of the
Company's Common Stock, will be available for issuances without further action
by the stockholders, unless such action is required by applicable law or the
rules of any stock exchange on which the Company's capital stock may then be
listed. Although the Board of Directors has no intention at the present time of
doing so, it could issue a series of Preferred Stock that could, depending on
the terms of such series, either impede or facilitate the completion of a
merger, tender offer or other takeover attempt. For instance, such series of
Preferred Stock might impede a business combination by including class voting
rights which would enable the holder to block such a transaction or facilitate a
business combination by including voting rights which would provide a required
percentage vote of stockholders. The Board of Directors will make any
determination to issue such shares based on its judgment as to the respective
best interests of the Company and its then existing stockholders.
BUSINESS COMBINATIONS
The Certificate requires that the following procedures be observed in connection
with the authorization of transactions involving an interested stockholder which
could eliminate or fundamentally change the interests of the remaining
stockholders of the Company ("Business Combinations").
If a Business Combination is proposed which will directly or indirectly involve
an "Interested Stockholder" (as hereinafter defined), such Business Combination
must be approved by the affirmative vote of the holders of the Company's capital
stock representing at least 80% of the votes entitled to be cast by the holders
of all the then outstanding shares of the voting stock, voting together as a
single class, and by the affirmative vote of at least a majority of the entire
Board of Directors of the Company unless such Business Combination is approved
by the majority of the directors who were in office prior to the time the
Interested Stockholder became an Interested Stockholder and who continue in
office (the "Continuing Directors").
A Business Combination includes:
(i) any merger or consolidation of the Company or any subsidiary thereof with
(a) any Interested Stockholder or (b) any other company (whether or not itself
an Interested stockholder) which is, or after such merger or consolidation would
be, an Affiliate or Associate (as hereinafter defined) of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition
or security arrangement, investment, loan, advance, guarantee, agreement to
purchase, agreement to pay, extension of credit, joint venture participation, or
other agreement (in one transaction or a series of transactions) with or for the
benefit of any Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder involving any assets, securities, or commitments of the
Company, any subsidiary of any Interested Stockholder, or any Affiliate or
Associate of any Interested Stockholder having an aggregate fair market value
and/or involving aggregate commitments of $1,000,000 or more; or
(iii) the adoption of any plan or proposal for the liquidation or dissolution of
the Company which is voted for, approved, or consented to by any Interested
Stockholder; or
(iv) any reclassification of securities (including any reverse stock split), or
recapitalization of the Company, or any merger or consolidation of the Company
with any of its subsidiaries, or any other transaction (whether or not with or
otherwise involving an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
capital stock, or any securities convertible into capital stock or into equity
securities of any subsidiary, that is beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
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(v) any agreement, contract, or other arrangement providing for any one or more
of the actions specified in the foregoing clauses (i) to (iv).
An "Interested Stockholder" is any person (other than the Company or any
subsidiary thereof and other than any profit-sharing, employee stock ownership,
or other employee benefit plan of the Company or any subsidiary or any trustee
of or fiduciary with respect to any such plan when acting in such capacity) who
(i) is the beneficial owner of voting stock representing 20% or more of the
votes entitled to be cast by the holders of all then outstanding shares of
voting stock or (ii) is an Affiliate or Associate of the Company and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner of voting stock representing 20% or more of the votes entitled
to be cast by the holders of all then outstanding shares of voting stock.
"Affiliate" and "Associate" shall have the respective meanings ascribed to such
terms in Rule 12b-2 under the Exchange Act as in effect on the date that the
Business Combination is approved by the Board of Directors (the term
"registrant" in such Rule 12b-2 meaning, in this case, the Company).
A majority of the Continuing Directors of the Company shall each have the power
and duty to determine, for the purposes of applying the Business Combination
provisions to their respective corporations, on the basis of information known
to them after reasonable inquiry (i) whether a person is an Interested
Stockholder, (ii) the number of shares of capital stock or other securities
beneficially owned by any person, (iii) whether a person is an Affiliate or
Associate of another, and (iv) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Company or any subsidiary in any Business
Combination has, an aggregate fair market value of $1,000,000 or more.
AMENDMENT OF CERTAIN PROVISIONS OF THE CERTIFICATE AND BYLAWS
The Certificate contains provisions requiring the affirmative vote of the
holders of at least 80% of the voting stock to amend the provisions relating to
the election and number of directors and Business Combinations described above.
The Bylaws contain provisions requiring the affirmative vote of holders of at
least 80% of the voting stock to amend the provisions relating to special
meetings of stockholders. These provisions will make it more difficult for
stockholders to make changes in the Certificate or Bylaws, including changes
designed to facilitate the exercise of control over the Company. In addition,
such requirements will enable the holders of a minority of stock to prevent the
holders of a majority or more of such stock from amending certain provisions of
the Certificate and Bylaws. The requirements for such vote may be difficult to
obtain, since at least 80% of the Common Stock must be present or represented by
proxy at any meeting at which any such amendment is proposed and must vote in
favor of such amendment.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt Warrants")
or Preferred Stock (the "Preferred Share Warrants", collectively with the Debt
Warrants, the "Warrants"). Warrants may be issued independently or together with
any other Securities and may be attached to or separate from such Securities.
The Warrants are to be issued under warrant agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust company,
as warrant agent (the "Warrant Agent"), all as shall be set forth in the
Prospectus Supplement relating to the Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt Warrants
offered thereby, the Warrant Agreement relating to such Debt Warrants and the
debt warrant certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the aggregate number of such
Debt Warrants; (3) the price or prices at which such Debt Warrants will be
issued; (4) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants; (5) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such security; (6)
the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (7) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant, and the price at
which such principal amount of Debt Securities may be purchased upon such
exercise; (8) the date on which the right to exercise such Debt Warrants shall
commence, and the date on which such right shall expire; (9) the maximum or
minimum number of such Debt Warrants which may be exercised at any time;
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(10) a discussion of material federal income tax considerations, if any; and
(11) any other terms of such Debt Warrants and terms, procedures and limitations
relating to the exercise of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant certificates
of different denominations, and Debt Warrants may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders of
Debt Warrants will not have any of the rights of holders of the securities
purchasable upon such exercise and will not be entitled to payments of principal
of (or premium, if any) or interest, if any, on the securities purchasable upon
such exercise.
PREFERRED WARRANTS
The applicable Prospectus Supplement will describe the following terms of
Preferred Stock Warrants in respect of which this Prospectus is being delivered:
(1) the title of such Warrants; (2) the Securities for which such Warrants are
exercisable; (3) the price or prices at which such Warrants will be issued; (4)
the number of such Warrants issued with each share of Preferred Stock; (5) any
provisions for adjustment of the number or amount of Preferred Stock receivable
upon exercise of such Warrants or the exercise price of such Warrants; (6) if
applicable, the date on and after which such Warrants and the related Preferred
Stock will be separately transferable; (7) if applicable, a discussion of
material federal income tax considerations; (8) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants; (9) the date on which the right to exercise such
Warrants shall commence, and the date on which the right shall expire; (10) the
maximum or minimum number of such Warrants which may be exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of the Warrants to purchase for cash such
principal amount of Debt Securities or Preferred Stock at such exercise price as
shall in each case be set forth in, or be determinable as set forth in, the
Prospectus Supplement relating to the Warrants offered thereby. Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants offered thereby.
After the close of business on the expiration date, unexercised Warrants will
become void.
Warrants may be exercised as set forth in the Prospectus Supplement relating to
the Warrants offered thereby. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the Prospectus Supplement,
the Company will, as soon as practicable, forward the Debt Securities or
Preferred Stock purchasable upon such exercise. If less than all of the Warrants
represented by such warrant certificate are exercised, a new warrant certificate
will be issued for the remaining Warrants.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
The Nuevo Trust may issue only one series of Trust Preferred Securities having
terms described in the Prospectus Supplement relating thereto. The Declaration
of the Nuevo Trust authorizes the Regular Trustees to issue on behalf of the
Nuevo Trust one series of Trust Preferred Securities. The Declaration will be
qualified as an indenture under the Trust Indenture Act. The Trust Preferred
Securities will have such terms, including distributions, redemption, voting,
liquidation, conversion rights and such other preferred, deferred or other
special rights or such restrictions as shall be set forth in the Declaration or
made part of the Declaration by the Trust Indenture Act, and which will mirror
the terms of the Subordinated Debt Securities held by the Property Trustee and
described in the Prospectus Supplement related thereto. Reference is made to the
Prospectus Supplement relating to the Trust Preferred Securities for specific
terms, including (i) the distinctive designation of such Trust Preferred
Securities; (ii) the number of Trust Preferred Securities; (iii) the annual
distribution rate (or method of determining such rate) for the Trust Preferred
Securities and the date or dates upon which such distributions shall be payable;
provided, however, that distributions on such Trust Preferred Securities shall
be payable on a quarterly basis to holders of such Trust Preferred Securities as
of a record date in each quarter during which such Trust Preferred Securities
are outstanding; (iv) whether distributions on the Trust Preferred Securities
shall be cumulative, and, in the case of Trust Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on the Trust Preferred Securities shall
be cumulative; (v) the amount or amounts which shall be paid out of the assets
of the Nuevo Trust to the holders of the Trust Preferred Securities upon
voluntary or involuntary dissolution, winding-up or termination of the Nuevo
Trust; (vi) the obligation, if any, of the Nuevo Trust to purchase or redeem the
Trust Preferred Securities and the price or prices at which, the period or
periods within which, and the terms and conditions upon which, the Trust
Preferred Securities shall be purchased or redeemed, in whole or in part,
pursuant to such obligation; (vii) the voting rights, if any, of the Trust
Preferred Securities in addition to those required by law, including the number
of votes per Trust Preferred Security and any requirement for the approval by
the holders of the Trust Preferred Securities, as a condition to specified
action or amendments to the Declaration of the Nuevo Trust; (viii) the terms and
conditions, if any, upon which the Trust Preferred Securities may be converted
into shares of Common Stock, including the conversion price per share and the
circumstances, if any, under which any such conversion right shall expire; (ix)
the terms and conditions, if any, upon which the Subordinated Debt Securities
may be distributed to holders of the Trust Preferred Securities; (x) if
applicable, any securities exchange upon which the Trust Preferred Securities
shall be listed; and (xi) any other relevant rights, preferences, privileges,
limitations or restrictions of the Trust Preferred Securities not inconsistent
with the Declaration of the Nuevo Trust or with applicable law. All Trust
Preferred Securities offered hereby will be guaranteed by the Company to the
extent set forth below under "Description Of Trust Preferred Securities
Guarantee." Certain United States federal income tax considerations applicable
to any offering of Trust Preferred Securities will be described in the
Prospectus Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, the Nuevo Trust
will issue one series of Trust Common Securities. The Declaration of the Nuevo
Trust authorizes the Regular Trustees to issue on behalf of the Nuevo Trust one
series of Trust Common Securities having such terms including distributions,
redemption, voting and liquidation rights or such restrictions as shall be set
forth therein. The terms of the Trust Common Securities will be substantially
identical to the terms of the Trust Preferred Securities, and the Trust Common
Securities will rank pari passu, and payments will be made thereon pro rata,
with the Trust Preferred Securities except that, upon an event of default under
the Declaration, the rights of the holders of the Trust Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Except in certain limited circumstances, the Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Nuevo Trustees. All of the Trust Common Securities will be directly or
indirectly owned by the Company.
PROPOSED TAX LEGISLATION
On March 19, 1996, as a part of President Clinton's Fiscal 1997 Budget Proposal,
the Treasury Department proposed legislation (the "Proposed Legislation") that,
among other things, would (i) treat as equity for United States federal income
tax purposes certain debt instruments with a maximum term of more than 20 years
and (ii) disallow interest deductions on certain convertible debt instruments or
defer interest deductions on certain debt instruments issued with original issue
discounts. The Proposed Legislation is proposed to be effective for debt
instruments issued on or after December 7, 1995.
On March 29, 1996, Senate Finance Committee Chairman William V. Roth, Jr. and
House Ways and Means Committee Chairman Bill Archer issued a joint statement
(the "Joint Statement") indicating their intent that the Proposed Legislation,
if adopted by either of the tax-writing committees of Congress, would
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have an effective date that is no earlier than the date of "appropriate
Congressional action." However, there can be no assurances that the effective
date guidance contained in the Joint Statement will be incorporated in the
Proposed Legislation, if enacted, or that other legislation enacted after the
date hereof will not otherwise adversely affect the tax treatment of the
Subordinated Debt Securities. In addition, there can be no assurances as to
whether or in what form the Proposed Legislation may be enacted into law or
whether other legislation will be enacted that otherwise adversely affects the
tax treatment of the Subordinated Debt Securities and the Trust Preferred
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an Event of Default under the Declaration of the Nuevo Trust occurs and is
continuing, then the holders of the Trust Preferred Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the
Subordinated Debt Securities against the Company. In addition, the holders of a
majority in liquidation amount of the Trust Preferred Securities will have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Property Trustee or to direct the exercise of any trust
or power conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Subordinated Debt Securities. If the Property Trustee
fails to enforce its rights under such of Subordinated Debt Securities, a holder
of the Trust Preferred Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's rights under such
Subordinated Debt Securities without first instituting any legal proceeding
against the Property Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default under the applicable Declaration has occurred
and is continuing and such event is attributable to the failure of the Company
to pay interest or principal on such Subordinated Debt Securities on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a holder of the Trust Preferred Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on such Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Trust Preferred
Securities of such holder (a "Direct Action") on or after the respective due
date specified in the Subordinated Debt Securities. In connection with such
Direct Action, the Company will be subrogated to the rights of such holder of
the Trust Preferred Securities under the Declaration to the extent of any
payment made by the Company to such holder of Trust Preferred Securities in such
Direct Action.
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Trust Preferred
Securities Guarantee which will be executed and delivered by the Company for the
benefit of the holders from time to time of Trust Preferred Securities. The
Trust Preferred Securities Guarantee will be qualified as an indenture under the
Trust Indenture Act. Wilmington Trust Company will act as the independent
trustee under the Trust Preferred Securities Guarantee (the "Preferred Guarantee
Trustee") for purposes of the Trust Indenture Act. The terms of the Trust
Preferred Securities Guarantee will be those set forth in the Trust Preferred
Securities Guarantee and those made part of the Trust Preferred Securities
Guarantee by the Trust Indenture Act. The summary is subject in all respects to
the provisions of, and is qualified in its entirety by reference to, the form of
Trust Preferred Securities Guarantee, which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Each Trust Preferred Securities Guarantee will be held by the
Preferred Guarantee Trustee for the benefit of the holders of the Trust
Preferred Securities.
GENERAL
Pursuant to the Trust Preferred Securities Guarantee, the Company will agree, to
the extent set forth therein, to pay in full, to the holders of the Trust
Preferred Securities, the Guarantee Payments (as defined herein) (except to the
extent paid by the Nuevo Trust), as and when due, regardless of any defense,
right of setoff or counterclaim which the Nuevo Trust may have or assert. The
following payments with respect to the Trust Preferred Securities to the extent
not paid by the Nuevo Trust (the "Guarantee Payments"), will be subject to the
Trust Preferred Securities Guarantee thereon (without duplication): (i) any
accrued and unpaid distributions which are required to be paid on such Trust
Preferred Securities, to the extent the Nuevo Trust shall have funds available
therefor; (ii) the redemption price set forth in the applicable Prospectus
Supplement (the "Redemption Price"), which will not be lower than the
liquidation amount, and all accrued and unpaid distributions, to the extent the
Nuevo Trust has funds available therefor, with respect to any Trust Preferred
Securities called for redemption by the Nuevo Trust and (iii) upon a voluntary
or involuntary dissolution, winding-up or termination of the Nuevo Trust (other
than in connection with the distribution of Subordinated Debt Securities to the
holders of Trust Preferred Securities or the redemption of all of the Trust
Preferred Securities), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid distributions on the Trust Preferred Securities to
the date of payment, to the extent the Nuevo Trust has funds available therefor,
and (b) the amount of assets of the
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Nuevo Trust remaining available for distribution to holders of the Trust
Preferred Securities in liquidation of the Nuevo Trust. The Company's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of Trust Preferred Securities or by
causing the Nuevo Trust to pay such amounts to such holders.
The Trust Preferred Securities Guarantee will not apply to any payment of
distributions on the Trust Preferred Securities except to the extent the Nuevo
Trust shall have funds available therefor. If the Company does not make interest
payments on the Subordinated Debt Securities purchased by the Nuevo Trust, the
Nuevo Trust will not pay distributions on the Trust Preferred Securities issued
by the Nuevo Trust and will not have funds available therefor. See "Description
Of Debt Securities - Certain Covenants of the Company." The Trust Preferred
Securities Guarantee, when taken together with the Company's obligations under
the Subordinated Debt Securities, the Indenture and the Declaration, including
its obligations to pay costs, expenses, debts and liabilities of the Nuevo Trust
(other than with respect to the Trust Securities), will provide a full and
unconditional guarantee on a subordinated basis by the Company of payments due
on the Trust Preferred Securities.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Nuevo Trust with respect to the Trust Common
Securities (the "Trust Common Securities Guarantee") to the same extent as the
Trust Preferred Securities Guarantee, except that upon an event of default under
the Subordinated Indenture, holders of Trust Preferred Securities shall have
priority over holders of Trust Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In the Trust Preferred Securities Guarantee, the Company will covenant that, so
long as any Trust Preferred Securities remain outstanding, if there shall have
occurred any event that would constitute an event of default under such Trust
Preferred Securities Guarantee or the Declaration of the Nuevo Trust, then (a)
the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation payment with respect
to, any of its capital stock (other than (i) purchases or acquisitions of shares
of Common Stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, or (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock of the Company or the security being converted
or exchanged) or make any guarantee payments with respect to the foregoing and
(b) the Company shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with or junior to the
Subordinated Debt Securities held by the Property Trustee.
MODIFICATION OF THE TRUST PREFERRED SECURITIES GUARANTEE; ASSIGNMENT
Except with respect to any changes which do not materially adversely affect the
rights of holders of Trust Preferred Securities (in which case no vote will be
required), the Trust Preferred Securities Guarantee may be amended only with the
prior approval of the holders of not less than a majority in liquidation amount
of the outstanding Trust Preferred Securities. The manner of obtaining any such
approval of holders of such Trust Preferred Securities will be as set forth in
an accompanying Prospectus Supplement. All guarantees and agreements contained
in the Trust Preferred Securities Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the holders of the Trust Preferred Securities then outstanding.
TERMINATION
The Trust Preferred Securities Guarantee will terminate (a) upon full payment of
the Redemption Price of all Trust Preferred Securities, (b) upon distribution of
the Subordinated Debt Securities held by the Property Trustee to the holders of
the Trust Preferred Securities or (c) upon full payment of the amounts payable
in accordance with the Declaration upon liquidation of the Nuevo Trust. The
Trust Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Trust Preferred
Securities must restore payment of any sums paid under the Trust Preferred
Securities or the Trust Preferred Securities Guarantee. The subordination
provisions of the Subordinated Debt Securities provide that in the event payment
is made on the Subordinated Debt Securities in contravention of such provisions
such payments shall be paid over to the holders of Senior Indebtedness.
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EVENTS OF DEFAULT
An event of default under the Trust Preferred Securities Guarantee will occur
upon (a) the failure of the Company to perform any of its payment or other
obligations thereunder or (b) if applicable, the failure by the Company to
deliver Common Stock upon an appropriate election by the holder or holders of
Trust Preferred Securities to convert the Trust Preferred Securities into shares
of Common Stock.
The holders of a majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of the Trust Preferred Securities Guarantee or to direct the exercise of
any trust or power conferred upon the Preferred Guarantee Trustee under such
Trust Preferred Securities. If the Preferred Guarantee Trustee fails to enforce
such Trust Preferred Securities Guarantee, any holder of Trust Preferred
Securities may institute a legal proceeding directly against the Company to
enforce the Preferred Guarantee Trustee's rights under such Trust Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Nuevo Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a Guarantee
Payment, a holder of Trust Preferred Securities may directly institute a
proceeding against the Company for enforcement of the Trust Preferred Securities
Guarantee for such payment. The Company waives any right or remedy to require
that any action be brought first against the Nuevo Trust or any other person or
entity before proceeding directly against the Company.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE
The Trust Preferred Securities Guarantee will constitute an unsecured obligation
of the Company and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Company, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Company and with
any guarantee now or hereafter entered into by the Company in respect of any
preferred or preference stock of any affiliate of the Company and (iii) senior
to Common Stock. The terms of the Trust Preferred Securities provide that each
holder of Trust Preferred Securities by acceptance thereof agrees to the
subordination provisions and other terms of the Trust Preferred Securities
Guarantee relating thereto.
The Trust Preferred Securities Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to the Trust Preferred Securities Guarantee, undertakes to perform only
such duties as are specifically set forth in such Trust Preferred Securities
Guarantee and, after default, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Preferred Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by a Trust Preferred
Securities Guarantee at the request of any holder of the Trust Preferred
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
PLAN OF DISTRIBUTION
The Securities may be sold by the Company, the Nuevo Trust and/or the Selling
Stockholders (i) through agents, (ii) through underwriters, (iii) through
dealers or (iv) directly to purchasers (through a specific bidding or auction
process or otherwise). In addition, the 1818 Fund may offer and sell Common
Stock on the New York Stock Exchange. The distribution of Securities may be
effected from time to time in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices relating to such prevailing market prices or at negotiated
prices.
Offers to purchase the Securities may be solicited by agents designated by the
Company or a Selling Stockholder from time to time. Any such agent involved in
the offer or sale of the Securities will be named, and any commissions payable
by the Company or Selling Stockholder 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. Any such agent may be deemed to be an underwriter, as that term is
defined in the Securities Act, of the Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of Securities, the
Company or any Selling Stockholders selling Common Stock thereunder will execute
an underwriting agreement with such underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the
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specific managing underwriter or underwriters, as well as any other underwriters
and the terms of the transactions, including compensation of the underwriters
and dealers, if any, will be set forth in the Prospectus Supplement, which will
be used by the underwriters to make resales of the Securities.
If a dealer is utilized in the sale of the Securities, the Company or a Selling
Stockholder will sell such Securities to the dealer, as principal. The dealer
may then resell such Securities to the public at varying prices to be determined
by such dealer at the time of resale. The name of the dealer and the terms of
the transactions will be set forth in the Prospectus Supplement relating
thereto. Offers to purchase the Securities may be solicited directly by the
Company or a Selling Stockholder and sales thereof may be made by the Company or
a Selling Stockholder directly to institutional investors or others. The terms
of any such sales, including the terms of any bidding or auction process, if
utilized, will be described in the Prospectus Supplement relating thereto.
The Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, or otherwise, by one or
more firms ("remarketing firms"), acting as principals for their own accounts or
as agents for the Company or a Selling Stockholder. Any remarketing firm will
be identified and the terms of its agreement, if any, with the Company or a
Selling Stockholder and its compensation will be described in the Prospectus
Supplement. Remarketing firms may be deemed to be underwriters in connection
with the Securities remarketed thereby.
Agents, underwriters, dealers and remarketing firms may be entitled under
agreements which may be entered into with the Company or Selling Stockholders to
indemnification by the Company or Selling Stockholders against certain
liabilities, including liabilities under the Securities Act, and any such
agents, underwriters, dealers or remarketing firms, or their affiliates may be
customers of, engage in transactions with or perform services for the Company or
Selling Stockholders in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize agents
and underwriters to solicit offers by certain institutions to purchase Debt
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject to only those conditions set forth in
the Prospectus Supplement. A commission indicated in the Prospectus Supplement
will be paid to underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by the Company.
SELLING STOCKHOLDERS
The Selling Stockholders are United Investors Management Company, a Delaware
corporation ("United") and wholly owned subsidiary of Torchmark Corporation, an
insurance and financial services holding company, and the 1818 Fund. As of
September 30, 1996, United owned 1,275,000 shares of Common Stock of Nuevo and
the 1818 Fund owned 112 shares of Common Stock and 11,220 shares of 7% Preferred
Stock convertible into approximately 863,493 shares of Common Stock. United is
registering for sale all of the shares of Common Stock owned by it and the 1818
Fund is registering for sale all of the shares of Common Stock owned by it or
issuable upon conversion of all of the 7% Preferred Stock owned by it. The
Prospectus Supplement relating to any Common Stock being offered by either
Selling Stockholder will set forth the number of shares of Common Stock being
offered for its account as well as the number of such shares and the percentage
of the outstanding Common Stock to be owned by such Selling Stockholder after
completion of the offering.
The shares of Common Stock being registered hereunder for sale by United and
1818 Fund have been registered pursuant to registration rights agreements, one
of which is between Nuevo and the 1818 Fund, dated May 28, 1992 and the other of
which is between Nuevo and Torch Energy Advisors Incorporated, dated April 4,
1996. Torch Energy Advisors Incorporated subsequently assigned its rights under
the April 4, 1996 agreement to United. Both registration rights agreements
provide a specified number of "demand" registration rights and unlimited "piggy
back" registration rights. The Company has agreed pursuant to the registration
rights agreements to indemnify the 1818 Fund and United (as the case may be)
against certain liabilities including liabilities under the Securities Act, or
to contribute to payments the 1818 Fund or United may be required to make in
respect thereof. The Company is obligated to pay all expenses in connection with
the shares sold by 1818 Fund hereunder, excluding any underwriting discounts or
commissions. United is required to pay its pro rata share of any expenses of
demand registrations requested by it, and the Company is required to pay all
expenses of registration statements in which United participates under its piggy
back registration rights, excluding any underwriting discounts or commissions.
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The general and managing partner of the 1818 Fund is Brown Brothers Harriman &
Co., a New York partnership ("Brown Brothers"), which has designated its
partners T. Michael Long and Lawrence C. Tucker the sole and exclusive partners
having voting power and investment power with respect to the shares of Common
Stock into which the 7% Preferred Stock is convertible. Mr. Long is a director
of the Company. Brown Brothers has advised the Company that the 1818 Fund is
selling its Common Stock because of the advanced term of the 1818 Fund in
relation to its planned life.
Prior to September 30, 1996, United owned all of the capital stock of Torch
Energy Advisors Incorporated ("Torch Energy") which has rendered administrative
services to the Company since the formation of the Company in 1990 pursuant to
an administrative services agreement, as amended. Prior to United's
sale of Torch Energy on September 30, 1996, Torch Energy distributed to United
the shares of Common Stock being registered hereunder. Torch Energy acquired
these shares in exchange for properties sold to Nuevo in April 1996. For
services rendered in connection with the acquisition of oil and gas properties
in California during April 1996, the Company paid Torch Energy a fee of $10
million. Prior to September 30, 1996, J.P. Bryan, a director of the Company,
was also a director of Torchmark Corporation. United has advised the Company
that it is selling its shares pursuant to its previously announced liquidation
of its energy-related investments.
This Prospectus is not the exclusive means for resale of any Common
Stock of the Selling Stockholders registered hereunder. For example, the 1818
Fund may also sell Common Stock owned by it pursuant to Rule 144 under the
Securities Act.
EXPERTS
The consolidated financial statements of Nuevo Energy Company as of December 31,
1995 and 1994, and for each of the years in the three-year period ended December
31, 1995, the statements of revenues and direct operating expenses of the Unocal
Properties for each of the years in the three-year period ended June 30, 1995,
and the statements of revenues and direct operating expenses of the Point
Pedernales Properties for each of the years in the three-year period ended June
30, 1995, have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
Information incorporated by reference in this Prospectus regarding the Company's
estimated quantities of oil and gas reserves and the discounted present value of
future pre-tax cash flows therefrom is based upon estimates of such reserves and
present values prepared by Miller and Lents, Ltd., S. A. Holditch and
Associates, Inc., Ryder Scott Company, D.O.R. Engineering Inc., and Poco Oil
Co., independent petroleum engineers. Information incorporated in this
Prospectus regarding the estimated quantities of oil and gas reserves
attributable to the California Properties and the discounted present value of
future pre-tax cash flows therefrom is based upon estimates of such reserves and
present values prepared by or derived from estimates prepared by Ryder Scott
Company. Information incorporated in this Prospectus regarding the estimated
quantities of oil and gas reserves attributable to the East Texas Properties and
the discounted present value of future pre-tax cash flows therefrom is based
upon estimates of such reserves and present values prepared by or derived from
estimates prepared by T.J. Smith & Company, Inc. All of such information has
been so included herein in reliance upon the authority of such firms as experts
in such matters.
LEGAL MATTERS
The validity of the Securities, other than the Trust Securities, offered hereby
will be passed upon for the Company by Butler & Binion L.L.P., Houston, Texas,
and will be passed upon for any agents, dealers or underwriters by counsel named
in the applicable Prospectus Supplement. The validity of the Trust Securities
will be passed upon by Richards, Layton & Finger, Wilmington, Delaware, special
Delaware counsel to the Company and the Nuevo Trust. If the Securities include
any Common Stock of a Selling Stockholder, certain legal matters in connection
therewith will be passed upon for such Selling Stockholders by counsel named in
the applicable Prospectus Supplement.
26
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this
Registration Statement shall have the meanings assigned to them in the
Prospectus which forms a part of this Registration Statement.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by Nuevo Energy Company (the "Company")
in connection with the issuance and distribution of the Securities to be
registered, other than underwriting discounts and commissions, are as follows:
<TABLE>
<CAPTION>
<S> <C> <C>
Securities Act registration fee.. $79,317
NASD filing fees................. 26,741
Rating Agency fees and expenses.. *
Trustee fees and expenses........ *
Printing costs................... *
Legal fees and expenses.......... *
Accounting fees and expenses..... *
Engineering fees and expenses.... *
Miscellaneous.................... *
Total....................... $ *
=======
</TABLE>
- --------
* To be completed by amendment.
All of the foregoing estimated costs, expenses and fees will be borne by
the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware,
pursuant to which the Company is incorporated, provides generally and in
pertinent part that a Delaware corporation may indemnify its directors and
officers against expenses, judgments, fines, and settlements actually and
reasonably incurred by them in connection with any civil, criminal,
administrative, or investigative suit or action except actions by or in the
right of the corporation if, in connection with the matters in issue, they acted
in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation, and in connection with any criminal
suit or proceeding, if in connection with the matters in issue, they had no
reasonable cause to believe their conduct was unlawful. Section 145 further
provides that in connection with the defense or settlement of any action by or
in the right of the corporation, a Delaware corporation may indemnify its
directors and officers against expenses actually and reasonably incurred by them
if, in connection with the matters in issue, they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made in respect of any
claim, issue, or matter as to which such person has been adjudged liable to the
corporation unless the Delaware Court of Chancery or other court in which such
action or suit is brought approves such indemnification. Section 145 further
permits a Delaware corporation to grant its directors and officers additional
rights of indemnification through bylaw provisions and otherwise, and or
purchase indemnity insurance on behalf of its directors and officers. Article
Nine of the Certificate of Incorporation of the Company and Article VII the
Bylaws of such registrant provide, in general, that the Company may indemnify
its officers and directors to the full extent of Delaware law.
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibit Number and Description.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1. Underwriting Agreement.
1.1 -- Form of Underwriting Agreement **
2. Plan of acquisition, reorganization, arrangement, liquidation or
succession.*
4. Instruments defining the rights of security holders, including
indentures
4.1 -- Form of Indenture for Senior Debt Securities.**
4.2 -- Form of Indenture for Subordinated Debt Securities between
the Company and Wilmington Trust Company, as trustee.
4.3 -- Specimen Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form
S-4 (Registration No. 33-33873)).
4.4 -- Form or forms of Securities**
4.5 -- Form of Amended and Restated Declaration of Trust of Nuevo
Financing I.
4.6 -- Form of Supplemental Indenture to be used in connection with
the issuance of Subordinated Debt Securities and Trust
Preferred Securities.**
4.7 -- Form of Preferred Securities Guarantee for the benefit of the
holders of Trust Preferred Securities of Nuevo Financing I.**
4.8 -- Form of Warrant Agreement.**
5. Opinion re legality
5.1 Opinion of Butler & Binion, L.L.P.**
5.1 Opinion of Richards, Layton & Finger regarding the validity of
the trust issued securities of Nuevo Financing I.**
8. Opinion re tax matters.**
12. Statement re computation of ratios**
15. Letter re unaudited interim financial information*
23. Consents of experts and counsel
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Butler & Binion, L.L.P. (included in their opinion
filed as Exhibit 5.1)
23.3 -- Consent of Richards, Layton & Finger (included in their
opinion filed as Exhibit 5.2)
23.4 -- Consent of Miller and Lents, Ltd. **
23.5 -- Consent of S. A. Holditch and Associates, Inc. **
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
23.6 -- Consent of Ryder Scott Company **
23.7 -- Consent of T. J. Smith & Company, Inc. **
23.8 -- Consent of D.O.R. Engineering, Inc. **
24. Power of attorney
24.1 -- Included on page II-5 of this Registration Statement.
25. Statement of eligibility of trustee
25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of the trustee under the Senior Debt Indenture.**
25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Wilmington Trust Company, as trustee under the
Subordinated Debt Indenture.* *
25.3 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Wilmington Trust Company, as trustee under the
Amended and Restated Declaration of Trust of Nuevo Financing
I.**
25.4 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Wilmington Trust Company, as trustee under the
Preferred Securities Guarantee of Nuevo Energy Company for
the benefit of the holders of Trust Preferred Securities of
Nuevo Financing I.**
26. Invitations for competitive bids*
27. Financial Data Schedule
99. Additional Exhibits*
- -----------------
</TABLE>
* Inapplicable to this filing
** To be filed as an amendment to this Registration Statement or as an exhibit
to a Current Report of the Company of Form 8-K and incorporated herein by
reference.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if , in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, That paragraphs (1)(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that claims for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer, or controlling person of
the Company
II-4
<PAGE>
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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
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 the 15th day of November,
1996.
NUEVO ENERGY COMPANY
By: /s/ Michael D. Watford
________________________________________
Michael D. Watford
President, Chief Executive Officer, and
Chief Operating Officer
II-6
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael D. Watford and Robert M. King, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him in his name, place and stead, in any
and all capacities, to sign any and all amendments (including amendments that
register additional securities of the same class to be declared effective in
accordance with Rule 462(b) promulgated under the Securities Act of 1933 and
post-effective amendments) to this Registration Statement and any new
Registration Statement that registers additional securities in accordance with
said Rule 462, and to file the same, with all exhibits hereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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>
NAME TITLE DATE
<S> <C> <C>
- --------------------------- Chairman; Director November , 1996
J. P. Bryan
/s/ Michael D. Watford Director, Chief Executive
- --------------------------- Officer, President, Chief November 15, 1996
Michael D. Watford Operating Officer (Principal
Executive Officer)
/s/ Robert M. King Vice President-Chief Financial
- --------------------------- Officer (Principal Financial November 15, 1996
Robert M. King and Accounting Officer)
/s/ Robert L. Gerry, III Director November 15, 1996
- ---------------------------
Robert L. Gerry, III
/s/ Robert H. Allen Director November 15, 1996
- ---------------------------
Robert H. Allen
/s/ Isaac Arnold, Jr. Director November 15, 1996
- ---------------------------
Isaac Arnold, Jr.
Director November , 1996
- ---------------------------
T. Michael Long
/s/ John B. Connally, III Director November 15, 1996
- ---------------------------
John B. Connally, III
Director November , 1996
- ---------------------------
James T. Hackett
/s/ Gary R. Petersen Director November 15, 1996
- ---------------------------
Gary R. Petersen
/s/ Thomas D. Barrow
- --------------------------- Director November 15, 1996
Thomas D. Barrow
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
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 the 15th day of November,
1996.
NUEVO FINANCING I, a Delaware business
trust
By: NUEVO ENERGY COMPANY, as
Depositor
By: /s/ Michael D. Watford
___________________________________
Michael D. Watford
President, Chief Executive Officer, and
Chief Operating Officer
II-8
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
NUEVO ENERGY COMPANY
TO
[SUBORDINATED INDENTURE TRUSTEE]
Trustee
________________
SUBORDINATED INDENTURE
________________
Dated as of [ ]___, 199[ ]
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE.................................................................... 1
Section 101. Definitions..................................................... 1
Section 102. Compliance Certificates and Opinions............................ 9
Section 103. Form of Documents Delivered to Trustee.......................... 10
Section 104. Acts of Holders; Record Dates................................... 10
Section 105. Notices, Etc., to Trustee and Company........................... 12
Section 106. Notice to Holders; Waiver....................................... 13
Section 107. Conflict with Trust Indenture Act............................... 13
Section 108. Effect of Headings and Table of Contents........................ 13
Section 109. Successors and Assigns.......................................... 13
Section 110. Separability Clause............................................. 13
Section 111. Benefits of Indenture........................................... 13
Section 112. Governing Law................................................... 14
Section 113. Legal Holidays.................................................. 14
ARTICLE TWO.................................................................... 14
Section 201. Forms Generally................................................. 14
Section 202. Form of Trustee's Certificate of Authentication................. 14
Section 203. Form of Legend for Global Securities............................ 15
Section 204. Form of Conversion Notice....................................... 15
Section 205. Securities in Global Form....................................... 15
ARTICLE THREE.................................................................. 16
Section 301. Amount Unlimited; Issuable in Series............................ 16
Section 302. Denominations................................................... 19
Section 303. Execution, Authentication, Delivery and Dating.................. 19
Section 304. Temporary Securities............................................ 20
Section 305. Registration, Registration of Transfer and Exchange............. 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................ 22
Section 307. Payment of Interest; Interest Rights Preserved.................. 23
Section 308. Persons Deemed Owners........................................... 24
Section 309. Cancellation.................................................... 24
Section 310. Computation of Interest......................................... 25
ARTICLE FOUR................................................................... 25
Section 401. Satisfaction and Discharge of Indenture......................... 25
Section 402. Application of Trust Money...................................... 26
ARTICLE FIVE................................................................... 26
Section 501. Events of Default............................................... 26
Section 502. Acceleration of Maturity; Rescission and Annulment.............. 28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. 29
Section 504. Trustee May File Proof of Claim................................. 29
Section 505. Trustee May Enforce Claims Without Possession of Securities..... 30
Section 506. Application of Money Collected.................................. 30
Section 507. Limitation on Suits............................................. 30
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C>
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest................................................... 31
Section 509. Restoration of Rights and Remedies.............................. 31
Section 510. Rights and Remedies Cumulative.................................. 31
Section 511. Delay or Omission Not Waiver.................................... 32
Section 512. Control by Holders.............................................. 32
Section 513. Waiver of Past Defaults......................................... 32
Section 514. Undertaking for Costs........................................... 33
Section 515. Waiver of Usury, Stay or Extension Laws......................... 33
ARTICLE SIX.................................................................... 33
Section 601. Certain Duties and Responsibilities............................. 33
Section 602. Notice of Defaults.............................................. 33
Section 603. Certain Rights of Trustee....................................... 34
Section 604. Not Responsible for Recitals or Issuance of Securities.......... 34
Section 605. May Hold Securities............................................. 35
Section 606. Money Held in Trust............................................. 35
Section 607. Compensation and Reimbursement.................................. 35
Section 608. Conflicting Interests........................................... 35
Section 609. Corporate Trustee Required; Eligibility......................... 36
Section 610. Resignation and Removal, Appointment of Successor............... 36
Section 611. Acceptance of Appointment by Successor.......................... 37
Section 612. Merger, Conversion, Consolidation or Succession to Business..... 38
Section 613. Preferential Collection of Claims Against Company............... 38
Section 614. Appointment of Authenticating Agent............................. 39
ARTICLE SEVEN.................................................................. 40
Section 701. Company to Furnish Trustee Names and Addresses of Holders...... 40
Section 702. Preservation of Information; Communications to Holders.......... 40
Section 703. Reports by Trustee.............................................. 41
Section 704. Reports by Company.............................................. 41
ARTICLE EIGHT.................................................................. 41
Section 801. Company May Consolidate, Etc., Only on Certain Terms............ 41
Section 802. Successor Substituted........................................... 42
ARTICLE NINE................................................................... 42
Section 901. Supplemental Indentures Without Consent of Holders.............. 42
Section 902. Supplemental Indentures With Consent of Holders................. 43
Section 903. Execution of Supplemental Indentures............................ 45
Section 904. Effect of Supplemental Indentures............................... 45
Section 905. Conformity with Trust Indenture Act............................. 45
Section 906. Reference in Securities to Supplemental Indentures.............. 45
ARTICLE TEN.................................................................... 45
Section 1001. Payment of Principal, Premium and Interest..................... 45
Section 1002. Maintenance of Office or Agency................................ 46
Section 1003. Money for Securities Payments to be Held in Trust.............. 46
Section 1004. Statement by Officers as to Default............................ 47
Section 1005. Existence...................................................... 47
Section 1006. Maintenance of Properties...................................... 47
</TABLE>
(ii)
<PAGE>
<TABLE>
<S> <C>
Section 1007. Payment of Taxes and Other Claims.............................. 48
Section 1008. Waiver of Certain Covenants.................................... 48
Section 1009. Covenants as to Nuevo Trusts................................... 48
ARTICLE ELEVEN................................................................. 49
Section 1101. Applicability of Article....................................... 49
Section 1102. Election to Redeem; Notice to Trustee.......................... 49
Section 1103. Selection by Trustee of Securities to be Redeemed.............. 49
Section 1104. Notice of Redemption........................................... 50
Section 1105. Deposit of Redemption Price.................................... 51
Section 1106. Securities Payable on Redemption Date.......................... 51
Section 1107. Securities Redeemed in Part.................................... 51
ARTICLE TWELVE................................................................. 52
Section 1201. Applicability of Article....................................... 52
Section 1202. Satisfaction of Sinking Fund Payments with Securities.......... 52
Section 1203. Redemption of Securities for Sinking Fund...................... 52
ARTICLE THIRTEEN............................................................... 53
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance... 53
Section 1302. Defeasance and Discharge....................................... 53
Section 1303. Covenant Defeasance............................................ 53
Section 1304. Conditions to Defeasance or Covenant Defeasance................ 54
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions........................... 56
Section 1306. Reinstatement.................................................. 56
ARTICLE FOURTEEN............................................................... 57
Section 1401. Conditions to Defeasance or Covenant Defeasance................ 57
Section 1402. Exercise of Conversion Privilege............................... 57
Section 1403. No Fractional Shares........................................... 58
Section 1404. Adjustment of Conversion Price................................. 58
Section 1405. Notice of Certain Corporate Actions............................ 59
Section 1406. Reservation of Shares of Common Stock.......................... 60
Section 1407. Payment of Certain Taxes upon Conversion....................... 60
Section 1408. Nonassessability............................................... 60
Section 1409. Effect of Consolidation or Merger on Conversion Privilege...... 60
Section 1410. Duties of Trustee Regarding Conversion......................... 61
Section 1411. Repayment of Certain funds upon Conversion..................... 61
ARTICLE FIFTEEN................................................................ 62
Section 1501. Securities Subordinate to Senior Indebtedness.................. 62
Section 1502. Payment Over of Proceeds Upon Dissolution...................... 62
Section 1503. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities................................................ 63
Section 1504. No Payment When Senior Indebtedness in Default................. 64
Section 1505. Payment Permitted in Certain Situations........................ 64
Section 1506. Subrogation to Rights of Holders of Senior Indebtedness........ 64
Section 1507. Provisions Solely to Define Relative Rights.................... 65
Section 1508. Trustee to Effectuate Subordination............................ 65
Section 1509. No Waiver of Subordination Provisions.......................... 65
Section 1510. Notice to Trustee.............................................. 66
</TABLE>
(iii)
<PAGE>
<TABLE>
<S> <C>
Section 1511. Reliance on Judicial Order or Certificate of Liquidating....... 66
Section 1512. Trustee Not Fiduciary for Holders of Senior Indebtedness....... 67
Section 1513. Rights of Trustee as Holder of Senior Indebtedness............. 67
Section 1514. Article Applicable to Paying Agents............................ 67
Section 1515. Certain Conversions Deemed Payment............................. 67
</TABLE>
(iv)
<PAGE>
NUEVO ENERGY COMPANY
RECONCILIATION OF CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section
- ----------- ---------
<S> <C> <C>
sec. 310 (a) (1) ......................................
(a) (2) ......................................
(2) (3) ......................................
(a) (4) ......................................
(b) ......................................
......................................
sec. 311 (a) ......................................
(b) ......................................
sec. 312 (a) ......................................
(b) ......................................
(c) ......................................
sec. 313 (a) ......................................
(b) ......................................
(c) ......................................
(d) ......................................
sec. 314 (a) ......................................
(a) (4) ......................................
(b) ......................................
(c) (1) ......................................
(c) (2) ......................................
(c) (3) ......................................
(d) ......................................
(e) ......................................
sec. 315 (a) ......................................
(b) ......................................
(c) ......................................
(d) ......................................
(e) ......................................
sec. 316 (a) ......................................
(a) (1) (A) ......................................
(a) (2) ......................................
(b) ......................................
</TABLE>
<PAGE>
<TABLE>
<S> <C>
(c) ......................................
sec. 317 (a) (1) ......................................
(a) (2) ......................................
sec. 317 (a) ......................................
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE, dated as of [ ] ___, 199[ ], between Nuevo Energy
Company, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 1331
Lamar, Suite 1600, Houston, Texas 77010, and [Name of Subordinated Indenture
Trustee], a banking corporation duly organized and existing under the laws of
[ ], as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
-------------------------------
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options exercisable
for, exchangeable for or convertible into such an equity interest in such
Person.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property (whether real, person or mixed) that is required to be classified and
accounted for as a capital lease obligation under generally accepted accounting
principles.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets of
the Nuevo Trust which rank pari passu with Preferred Securities issued by the
Nuevo Trust; provided, however, that upon the occurrence of an Event of Default,
-------- -------
the rights of holders of Common Securities to payment in respect to
distributions and payments upon
-2-
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liquidation, redemption and otherwise are subordinated to the rights of holders
of Preferred Securities.
"Common Securities Guarantee" means any Guarantee that the Company enters
into with [Guaranty Trustee] or other Persons that operates directly or
indirectly for the benefit of holders of Common Securities of the Nuevo Trust.
"Common Stock" includes any shares or stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company. Subject to
the anti-dilution provisions of any convertible Security, however, shares of
Common Stock of the Company issuable on conversion of a Security shall include
only shares of the class designated as Common Stock of the Company at the date
of any supplemental indenture, Board Resolution or other instrument authorizing
such Security or shares of any class of classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company, provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the designated office of the Trustee in
[ ], [ ] at which at any particular time its
corporate trust business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means, with respect to any Person, without duplication, (a) all
liabilities of such Person for borrowed money or for the deferred purchase price
of property or services (excluding any trade accounts payable and other accrued
current liabilities incurred in the ordinary course of business), and all
liabilities of such Person incurred in connection with any letters of credit,
bankers' acceptances or other similar credit transactions or any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value any Capital
Stock of such Person, or any warrants, rights or options to acquire such Capital
Stock outstanding on the date of this Indenture or thereafter, (b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) all Debt of
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such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade accounts payable arising in the ordinary course of business, (d)
all Capitalized Lease Obligations of such Person, (e) all Debt referred to in
the preceding clauses of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Debt has an
existing right to be secured by) any lien upon property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt (the amount
of such obligation being deemed to be the lesser of the value of such property
or asset or the amount of the obligation so secured), (f) all guarantees by such
Person of Debt referred to in this definition (including, with respect to any
Production Payments and Reserve Sales, any warranties or guaranties of
production or payment by such Person with respect to such Production Payments
and Reserve Sales but excluding other contractual obligations of such Person
with respect to such Production Payments and Reserve Sales ), (g) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends and (h) all
obligations of such Person under or in respect of currency exchange contracts,
oil or natural gas price hedging arrangements and Interest Rate Protection
Obligations. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Debt shall be
required to be determined pursuant to the Indenture, and if such price is based
upon, or measured by, the fair market value of such Redeemable Capital Stock,
such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock; provided, however,
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that if such Redeemable Capital Stock is not at the date of determination
permitted or required to be repurchased, the "maximum fixed repurchase price"
shall be the book value of such Redeemable Capital Stock. Subject to clause (f)
of the first sentence of this definition, Production Payments and Reserve Sales
shall not be deemed "Debt."
"Declaration", with respect to the Nuevo Trust, means the Amended and
Restated Declaration of Trust of the Nuevo Trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
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"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 203 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantor" means Nuevo Energy Company, a Delaware corporation, in its
capacity as guarantor under any Trust Securities Guarantees.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and 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, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Institutional Trustee" has the meaning set forth in the Declaration of the
Nuevo Trust.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements or arrangements designed to protect
against or manage such Person's and any of its Subsidiaries' exposure to
fluctuations in interest rates.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(5).
"Nuevo Trust" means Nuevo Financing I, a Delaware statutory business trust.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an
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Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such
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Clause), and (D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, bank, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means undivided beneficial interests in the assets
of the Nuevo Trust which rank pari passu with Common Securities issued by the
Nuevo Trust; provided, however, that upon the occurrence of an Event of Default,
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the rights of holders of Common Securities to payment in respect to
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any Guarantee that the Guarantor may
enter into with [Guaranty Trustee] or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities of the Nuevo
Trust.
"Production Payments and Reserve Sales" means the grant or transfer to any
Person of a royalty, overriding royalty, net profits interest, production
payment (whether volumetric or dollar denominated), master limited partnership
interest or other interest in oil and gas properties, reserves or the right to
receive all or a portion of the production or the proceeds from the sale of
production attributable to such properties where the holder of such interest has
recourse solely to such production or proceeds of production, subject to the
obligation of the grantor or transferor to operate and maintain, or cause the
subject interest to be operated and maintained, in a reasonably prudent manner
or other customary standard or subject to the obligation of the grantor or
transferor to indemnify for environmental matters.
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<PAGE>
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or by contract or otherwise, is, or upon the happening of an event or passage of
time would be, required to be redeemed prior to the final date specified in the
Securities as the Stated Maturity or is redeemable at the option of the holder
thereof at any time prior to such final Stated Maturity, or is convertible into
or exchangeable for debt securities at any time prior to such final Stated
Maturity.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding), on any Debt of the Company, whether incurred on or prior to the
date of this Indenture or thereafter incurred, unless in the instrument creating
or evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right or payment to the
Securities, or to other Debt of the Company which is pari passu with, or
subordinated to the Securities; provided, however, that Senior Indebtedness
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shall not be deemed to include the Securities or any Debt of the Company to any
Subsidiary of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, have at least a majority ownership
and power to direct the policies, management and affairs thereof. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
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the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred Securities of the
Nuevo Trust.
"Trust Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
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Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly
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required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of
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(1) any Notice of Default, (2) any declaration of acceleration referred to in
Section 502, (3) any request to institute proceedings referred to in Section
507(2) or (4) any direction referred to in Section 512, in each case with
respect to Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration.
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing
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and mailed, first-class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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[Name of Trustee], as Trustee
By:__________________________________
Authorized Officer
SECTION 203. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 204. FORM OF CONVERSION NOTICE.
The form of conversion notice for the conversion of Securities into shares
of Common Stock or other securities of the Company shall be in substantially the
form included with the applicable form of Securities as shall be established
pursuant to Section 201 hereinabove.
SECTION 205. SECURITIES IN GLOBAL FORM.
If Securities of any series are issuable as Global Securities, as specified
as contemplated by Section 301, then, notwithstanding the provisions of Section
301, any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities of
such series represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Global Security in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Global Security shall
be in writing but need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel.
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The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
with written instructions (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Global Security shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a Global Security as shall be specified in
a written statement of the Holder of such Global Security.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any 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 Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
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(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable or where the
Securities of the series may be surrendered for conversion or exchange;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) the right, if any, to extend the interest payment periods in
respect of the Securities of the series and the duration of such extension;
(10) the terms of any right to convert or exchange Securities of the
series, either at the election of the Holder thereof or the Company, into
or for shares of Common Stock of the Company or other securities or
property, including, without limitation, the period or periods within which
and the price or prices (including adjustments thereto) at which any
Securities of the series shall be converted or exchanged, in whole or in
part and any other provision in addition to or in lieu of those set forth
in this Indenture;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(12) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(13) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in
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which the principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be determined);
(15) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(17) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(18) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 203 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(19) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(20) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(21) any restriction or condition on the transferability of the
Securities;
(22) the subordination terms of the Securities of the series; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
prior to authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
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(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, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or
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more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided. The Security Registrar shall be
entitled to the rights and protections extended to the Trustee hereunder.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under
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Section 1103 and ending at the close of business on the day of such mailing, or
(B) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company or
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such
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Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted into Common Stock of the
Company after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
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delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either (A) all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or (B) all such
Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose money in
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
rights of the Trustee under Sections 507(3), 601 and 603, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent
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under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (l) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
Money deposited pursuant to this Section not in violation of this Indenture
shall not be subject to claims of the holders of Senior Indebtedness under
Article Fifteen hereof.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days (whether or not such payment is prohibited by the
subordination provisions set forth in Article Fifteen hereof); provided,
however, that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture supplemental hereto
shall not constitute a default in the payment of interest for this purpose;
or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity (whether or not such payment is
prohibited by the subordination provisions set forth in Article Fifteen
hereof); or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) if the Securities of that series are convertible or exchangeable
into or for shares of Common Stock of the Company or other securities, cash
or other property pursuant to any supplemental indenture, Board Resolution
or other instrument authorizing Securities of that series, failure by the
Company to convert such Securities (whether or not such conversion or
exchange is prohibited by the subordination provisions set forth in Article
Fifteen hereof); or
(5) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in
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whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) in the event Securities of that series are issued to the Nuevo
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by the Nuevo Trust, the Nuevo Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (A) the distribution of Securities of
that series to holders of Trust Securities in liquidation of their interest
in the Nuevo Trust, (B) the redemption of all of the outstanding Trust
Securities of the Nuevo Trust or (C) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of the Nuevo Trust; or
(9) any other Event of Default provided with respect to Securities of
that series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable; provided, however, that the Holders of a majority
in aggregate principal amount of Securities of such series then Outstanding may
rescind or annul such declaration and its consequences by objecting in writing
within 30 days of such declaration. If an Event of Default specified in Section
501(6) or 501(7) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have
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become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities and if such Securities are held by a
Nuevo Trust or a trustee of such trust, without duplication of any other
amounts paid by such Nuevo Trust or trustee in respect thereof, upon
overdue installments of interest at the rate per annum expressed in such
Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOF OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of all Senior Indebtedness of the Company to the
required by Article Fifteen hereof;
THIRD: To the payment of the amounts then due and unpaid for principal and
any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, but subject to
Article Fifteen of this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given
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hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
connection therewith, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected;
provided, however, that if the Securities of such series are held by the Nuevo
Trust or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation preference
of Trust Securities of the Nuevo Trust shall have consented to such waiver or
modification to such waiver; provided, further, that if the consent of the
Holder of each Outstanding Security of such series is required, such waiver
shall not be effective until each holder of the Trust Securities of the Nuevo
Trust shall have consented to such waiver.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or
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after notice or lapse of time or both would become, an event of default with
respect to securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
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The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed
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to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Securities of more than one series.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL, APPOINTMENT OF SUCCESSOR.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a
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bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and
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deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the trust
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indenture act regarding the collection of claims against the company (or any
such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Person organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[Trustee], as Trustee
By:
-------------------------------------
As Authenticating Agent
By: Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than [January 31] and [July 31] in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding [January 15] or [July 15], as the case may be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto,
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executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with much transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this indenture with the same effect as if such successor person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor person shall be relieved of all obligations and covenants
under this indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
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(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(8) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Fourteen hereof, including
providing for the conversion of the Securities into any security or
property (other than the Common Stock of the Company); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture;
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provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or any other Security which would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or adversely affect any right of repayment at the
option of a Holder of any Security, or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous
obligation, or change any Place of Payment where, or the coin or currency
in which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(7), or
(4) make any change that adversely affects the right to convert any
Security of any series as provided in Article Fourteen hereof or pursuant
to Section 301 (except as permitted by Section 901) or decrease the
conversion rate or increase the conversion price of any such Security of
such series, or
(5) make any change in Article Fifteen hereof that adversely affects
the rights of any Holders of Outstanding Securities of such series.
If the Securities of such series are held by a Nuevo Trust or a trustee of such
trust, such supplemental indenture shall not be effective until the holders of a
majority in liquidation preference of Trust Securities of the applicable Trust
shall have consented to such supplemental indenture; provided, that if the
consent of the Holder of each Outstanding Security of such series is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities of the applicable Nuevo Trust shall have consented to such
supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of
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Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
Prior to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENC
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company. The Paying Agent shall be entitled to the rights
and protections extended to the Trustee hereunder.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in
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the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(20), 901(2) or 901(6)
for the benefit of the Holders of such series or in any of Sections 1006, 1007
and 1009, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1009. COVENANTS AS TO NUEVO TRUST.
In the event Securities are issued to the Nuevo Trust or a trustee of such
trust in connection with the issuance of Trust Securities by the Nuevo Trust,
for so long as such Trust Securities remain outstanding, the Company will (1)
maintain 100% direct or indirect ownership of the Common Securities of the Nuevo
Trust; provided, however, that any permitted successor of the Company under the
Indenture may succeed to the Company's ownership of the Common Securities, (2)
use its reasonable efforts to cause the Nuevo Trust (A) to remain a statutory
business trust, except in connection with a distribution of Securities of such
series to the holders of Trust Securities in liquidation of the Nuevo Trust, the
redemption of all of the Trust Securities of the Nuevo Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of the Nuevo Trust, and (B) to continue to be classified as a grantor trust for
United States federal income tax purposes and (3) to use its reasonable efforts
to cause each holder of Trust Securities to be treated as owning an undivided
beneficial interest in the Securities of such series.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company
of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
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If Securities of any series selected for partial redemption are converted
in part before termination of the conversion right with respect to the portion
of the Securities of such series so selected, the converted portion of the
Securities of such series shall be deemed (so far as may be) to be the portion
selected for redemption. Securities (or portions thereof) which have been
converted during a selection of Securities of such series to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection. In
any case where more than one Security of such series is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Security of such series.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) if applicable, the conversion rate or price, the date on which
the right to convert the Securities of such series to be redeemed will
terminate and the place or places where such Securities may be surrendered
for conversion.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
If any Security called for redemption is converted into Common Stock of the
Company, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security shall (subject
to any right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of Section 307) be paid to
the Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities 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 such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, 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 pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. DEFEASANCE AND DISCHARGE
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section applied
to any Securities or any series of Securities, as the case may be, (1) the
Company shall be released from its obligations under Sections 1006, 1007 and
1009, and any covenants provided pursuant to Section 301(20), 901(2) or 901(6)
for the benefit of the Holders of such Securities and (2) the occurrence of any
event specified in Sections 501(5) (with respect to any of Sections 1006, 1007
and 1009, and any such covenants provided pursuant to Section 301(20), 901(2) or
901(6)) and 501(9) shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(5) and 501(8)),
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whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation 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 (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the
account of the holder of such depository receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest evidenced by such depository
receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the
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deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6) and
(7), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(10) No default in the payment of the principal of and any premium and
interest on any Senior Indebtedness beyond any applicable grace period
shall have occurred and be continuing.
(11) No other default with respect to any Senior Indebtedness shall
have occurred and be continuing and shall have resulted in the acceleration
of such Senior Indebtedness.
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SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such 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 in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
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ARTICLE FOURTEEN
CONVERSION OF SECURITIES
SECTION 1401. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the Securities of any
series which are convertible into shares of Common Stock of the Company, and the
issuance of such shares of Common Stock upon the conversion of Securities of
such series, except as otherwise specified as contemplated by Section 301 for
the Securities of such series. The terms and provisions applicable to the
conversion of Securities of any series into securities of the Company (other
than Common Stock) shall, if applicable, be set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of such series in accordance with Section 301.
SECTION 1402. EXERCISE OF CONVERSION PRIVILEGE
In order to exercise a conversion privilege, the Holder of a Security of
any series with such a privilege shall surrender such Security to the Company at
the office or agency maintained for that purpose pursuant to Section 1002,
accompanied by written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. Securities of such
series surrendered for conversion shall (if so required by the Company or the
Trustee) be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the Holder or its
attorney duly authorized in writing; and, if expressly specified, as
contemplated by Section 301, to be applicable to any series of Securities,
Securities of such series so surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date (excluding Securities or portions
thereof called for redemption during such period) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted, and such interest shall be payable to such Holder
notwithstanding the conversion of such Security, subject to the provisions of
Section 307 relating to the payment of Defaulted Interest by the Company. As
promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to Section 301, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of the Securities and the surrender of such Securities in accordance with
such reasonable regulations as the Company may prescribe, the Company shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Common Stock otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately prior to the close of business
on the date on which such notice and such payment, if required, shall have been
received in proper order for conversion by the Company and such Security shall
have been surrendered as aforesaid (unless such Holder
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shall have so surrendered such Security and shall have instructed the Company to
effect the conversion on a particular date following such surrender and such
Holder shall be entitled to convert such Security on such date, in which case
such conversion shall be deemed to be effected immediately prior to the close of
business on such date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for shares of Common Stock of the
Company shall be issuable upon such conversion shall be deemed to have become
the holder or holders of record of the shares represented thereby. Except as set
forth above and subject to the final paragraph of Section 3.7, no payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities of such series surrendered for conversion or on account of any
dividends on the Common Stock of the Company issued upon such conversion.
In the case of any Security of any series which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and make available for delivery to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of such
series, of authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
SECTION 1403. NO FRACTIONAL SHARES.
No fractional share of Common Stock of the Company shall be issued upon
conversions of securities of any series. If more than one security of such
series shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the securities of such series
(or specified portions thereof to the extent permitted hereby) so surrendered.
If, except for the provisions of this Section 1403, any Holder of a Security or
Securities of such series would be entitled to a fractional share of Common
Stock of the Company upon the conversion of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (1) if
such Common Stock is listed or admitted to unlisted trading privileges on a
National securities exchange, on the basis of the last reported sale price
regular way on such exchange on the last trading day prior to the date of
conversion upon which such a sale shall have been effected, or (2) if such
Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market, on the
last trading day prior to the date of conversion, as reported by the National
Quotation Bureau, incorporated or similar organization if the National Quotation
Bureau, Incorporated is no longer reporting such information, or if not so
available, the fair market price as determined by the Board of Directors. For
purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day on which the Common Stock is
not traded on the New York Stock Exchange, or if the Common Stock is not traded
on the New York Stock Exchange, on the principal exchange or market on which the
Common Stock is traded or quoted.
SECTION 1404. ADJUSTMENT OF CONVERSION PRICE
The conversion price of Securities of any series that is convertible into
Common Stock of the Company shall be adjusted for any stock dividends, stock
splits, reclassification, combinations or similar transactions in accordance
with the terms of the supple-
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mental indenture or Board Resolutions setting forth the terms of the Securities
of such series.
Whenever the conversion price is adjusted, the Company shall compute the
adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of conversion of
Securities of such series pursuant to Section 1002 and, if different, with the
Trustee. The Company shall forthwith cause a notice setting forth the adjusted
conversion price to be mailed, first class postage prepaid, to each Holder of
Securities of such series at its address appearing on the Security Register and
to any conversion agent other than the Trustee.
SECTION 1405. NOTICE OF CERTAIN CORPORATE ACTIONS
In case:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its retained
earnings (other than a dividend for which approval of any shareholders of
the Company is required); or
(2) the Company shall authorize the granting to the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights (other than
any such grant for which approval of any shareholders of the Company is
required); or
(3) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common
Stock) or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any shareholders of the
Company is required, or of the sale of all or substantially all of the
assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in clause
(1) or (2) above) prior to the applicable record date hereinafter specified, a
notice stating (A) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (B) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
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SECTION 1406. RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or treasury
shares, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 1407. PAYMENT OF CERTAIN TAXES UPON CONVERSION.
The Company will pay any and all taxes that may be payable in respect of
the issue or delivery of shares of its Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of its Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the satisfaction of
the Company, that such tax has been paid.
SECTION 1408. NONASSESSABILITY.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of securities will upon issue in accordance with the terms
hereof be duly and validly issued and fully paid and nonassessable.
SECTION 1409. EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE
Unless otherwise provided as contemplated by Section 301 with respect to
Securities of any series, in case of any consolidation of the Company with, or
merger of the Company into or with any other Person, or in case of any sale of
all or substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case may
be, shall execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then outstanding of any series that is
convertible into Common Stock shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of shares of Common Stock into which such Security might have been
converted immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive consolidations, mergers or sales. Unless
otherwise provided as contemplated by Section 301 with respect to Securities of
any series, it is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock do not
receive shares of common stock of the surviving corporation but receive other
securities, cash or other property or any combination thereof, Holders of
Securities shall not have the right to
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thereafter convert their Securities into common stock of the surviving
corporation or the corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock into which the Securities held by such Holder might have
been converted immediately prior to such consolidation, merger or sale, all as
more fully provided in the first sentence of this Section 1409. Anything in this
Section 1409 to the contrary notwithstanding, the provisions of this Section
1409 shall not apply to a merger or consolidation of another corporation with or
into the Company pursuant to which both of the following conditions are
applicable: (1) the Company is the surviving corporation and (2) the outstanding
shares of Common Stock are not changed or converted into any other securities or
property (including cash) or changed in number or character or reclassified
pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other securities
or property (including cash) into which Securities may properly be convertible
after any such consolidation, merger or sale, or as to the appropriate
adjustments of the conversion prices applicable with respect thereto, the
Trustee shall be furnished with and may accept the certificate or opinion of an
independent certified public accountant with respect thereto; and, in the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely thereon, and shall not be responsible or accountable to any Holder of
Securities for any provision in conformity therewith or approved by such
independent certified public accountant which may be contained in said
supplemental indenture.
SECTION 1410. DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Securities of any series that is
convertible into Common Stock to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture (or whether a supplemental
indenture need be entered into), any resolutions of the Board of Directors or
written instrument executed by one or more officers of the Company provided to
be employed in making the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Securities and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion or to comply
with any of the covenants of the Company contained in this Article Fourteen or
in the applicable supplemental indenture, resolutions of the Board of Directors
or written instrument executed by one or more duly authorized officers of the
Company. All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1411. REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the Company or on
its behalf with the Trustee or any other paying agent for the purpose of paying
the principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds
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deposited for the sinking fund referred to in Article Three hereof) and which
shall not be required for such purposes because of the conversion of such
Securities as provided in this Article Fourteen shall after such conversion be
repaid to the Company by the Trustee upon the Company's written request.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder, by the Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Security and the payment of the principal of and premium and interest on
each and all of the Securities are hereby expressly made subordinate and junior
in right of payment to the prior payment in full of all Senior Indebtedness of
the Company, whether outstanding at the date of this Indenture or thereafter
incurred. No provision of this Article shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 1502. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment by the Company or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal or of any premium or interest on the Securities; and
upon any such dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee would be entitled to receive from the Company, except
for the provisions of this Article, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders of the Securities or by
the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the Securities or to the
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for
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the benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness of the Company, as the case may be, remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding-up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 1503. PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness or provision shall be made for such
payment in cash, before the Holders of the Securities are entitled to receive
any payment (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Securities) by the Company on account of the principal of or any premium or
interest on the Securities or on account of the purchase or other acquisition of
Securities; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Twelve by
delivering and crediting pursuant to Section 1202 Securities which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration or which have been converted pursuant to Article Fourteen.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1402 would be applicable.
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SECTION 1504. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, as the case may be, beyond any applicable
grace period with respect thereto, or in the event that the maturity of any
Senior Indebtedness of the Company, as the case may be, has been accelerated
because of a default, or in the event that any other event has occurred and is
continuing on the basis of which the holders of any Senior Indebtedness may
accelerate the maturity thereof or demand payment in full, then, in any such
case, no payment shall be made by the Company with respect to the principal
(including redemption and sinking fund payments) of, or premium, if any, or
interest on the Securities until such default is cured or waived or ceases to
exist or any such acceleration or demand for payment has been rescinded.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1504, such payment shall be [paid over or delivered to
the Company] [held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness].
SECTION 1505. PAYMENT PERMITTED IN CERTAIN SITUATIONS.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (1) the Company, at any time except during the
pendency of any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or any bankruptcy, insolvency,
receivership or other proceedings of the Company referred to in Section 1502 or
under the conditions described in Section 1503 or 1504, from making payments at
any time of principal of, or premium, if any, or interest on the Securities, or
(2) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the principal of, or premium, if any, or
interest on the Securities or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have actual knowledge
that such payment would have been prohibited by the provisions of this Article.
SECTION 1506. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the rights of the Holders of
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation) to the
rights of the holders of
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such Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of and
any premium and interest on the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to or
for the benefit of the holders of Senior Indebtedness by Holders of Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1507. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of Securities on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (1) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of Securities the principal of and any premium and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (2) affect the relative rights against the Company of the
Holders of Securities and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness; or (3) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
[SECTION 1508. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such Holder's attorney-in-fact for any and all
such purposes.]
SECTION 1509. NO WAIVER OF SUBORDINATION PROVISIONS
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of Securities, without
incurring responsibility to the Holders of Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of Securities to the holders of Senior
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Indebtedness do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 1510. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of any Securities pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of any Securities pursuant to the
provisions of this Article, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 602, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall have not received the notice
provided for in this Section at least two business days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of or any premium
or interest on any Securities), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 602, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1511. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 603, and the
Holders of Securities shall be entitled to conclusively rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a
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certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1512. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders or creditors if it shall in good faith pay over or distribute
to Holders of Securities or to the Company or to any other Person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
SECTION 1513. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS,
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1514. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1413 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
SECTION 1515. CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities (or cash paid in lieu of fractional shares) upon conversion of
Securities in accordance with Article Fourteen, or pursuant to the terms set
forth in an Officers' Certificate or established in one or more indentures
supplemental hereto in accordance with Section 301, shall not be deemed to
constitute a payment or distribution on account of the principal of or premium
or interest on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash, property or
securities (other than junior securities and cash paid in lieu of fractional
shares) upon
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<PAGE>
conversion of a Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section, the term "junior
securities" means (A) shares of any stock of any class of the Company and (B)
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of Securities, the right, which
is absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article Fourteen.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
NUEVO ENERGY COMPANY
By__________________________________________
[TRUSTEE]
By___________________________________________
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<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the ____ day of September, 1996, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he/she is _______________ of Nuevo Energy Company, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like authority.
---------------------------------------
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
On the ____ day of September, 1996, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he/she is a Trust Officer of [Trustee], one of the corporations described
in and which executed the foregoing instrument; that he/she knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
---------------------------------------
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<PAGE>
AMENDED AND RESTATED DECLARATION
OF TRUST
Nuevo Financing I
Dated as of __________ [ ], 199_
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 INTERPRETATION AND DEFINITION.......................................................... 1
Section 1.01. DEFINITIONS............................................................................ 1
ARTICLE 2 TRUST INDENTURE ACT.................................................................... 7
Section 2.01. TRUST INDENTURE ACT; APPLICATION....................................................... 7
Section 2.02. LIST OF HOLDERS OF SECURITIES.......................................................... 7
Section 2.03. REPORTS BY THE INSTITUTIONAL TRUSTEE................................................... 8
Section 2.04. PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.............................................. 8
Section 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT....................................... 8
Section 2.06. EVENTS OF DEFAULT; WAIVER.............................................................. 8
Section 2.07. EVENT OF DEFAULT; NOTICE............................................................... 10
ARTICLE 3 ORGANIZATION........................................................................... 10
Section 3.01. NAME................................................................................... 11
Section 3.02. OFFICE................................................................................. 11
Section 3.03. PURPOSE................................................................................ 11
Section 3.04. AUTHORITY.............................................................................. 11
Section 3.05. TITLE TO PROPERTY OF THE TRUST......................................................... 11
Section 3.06. POWERS AND DUTIES OF THE REGULAR TRUSTEES.............................................. 11
Section 3.07. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES................................... 14
Section 3.08. LEGAL TITLE TO THE DEBENTURES.......................................................... 15
Section 3.09. CERTAIN DUTIES AND RESPONSIBILITIES OF THE INSTITUTIONAL TRUSTEE....................... 17
Section 3.10. CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE................................................ 19
Section 3.11. DELAWARE TRUSTEE....................................................................... 21
Section 3.12. EXECUTION OF DOCUMENTS................................................................. 21
Section 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES................................. 21
Section 3.14. DURATION OF TRUST...................................................................... 21
Section 3.15. MERGERS................................................................................ 21
ARTICLE 4 SPONSOR................................................................................ 23
Section 4.01. SPONSOR'S PURCHASE OF COMMON SECURITIES................................................ 23
Section 4.02. RESPONSIBILITIES OF THE SPONSOR........................................................ 23
ARTICLE 5 TRUSTEES............................................................................... 24
Section 5.01. NUMBER OF TRUSTEES..................................................................... 24
Section 5.02. DELAWARE TRUSTEE....................................................................... 24
Section 5.03. INSTITUTIONAL TRUSTEE; ELIGIBILITY..................................................... 24
Section 5.04. CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY............................................................. 25
Section 5.05. REGULAR TRUSTEES....................................................................... 25
Section 5.06. DELAWARE TRUSTEE....................................................................... 26
Section 5.07. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES....................................... 26
Section 5.08. VACANCIES AMONG TRUSTEES............................................................... 27
Section 5.09. EFFECT OF VACANCIES.................................................................... 28
Section 5.10. MEETINGS............................................................................... 28
Section 5.11. DELEGATION OF POWER.................................................................... 28
Section 5.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS............................ 29
ARTICLE 6 DISTRIBUTIONS.......................................................................... 29
</TABLE>
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<TABLE>
<S> <C> <C>
Section 6.01. DISTRIBUTIONS.......................................................................... 29
ARTICLE 7 ISSUANCE OF SECURITIES................................................................. 29
Section 7.01. GENERAL PROVISIONS REGARDING SECURITIES................................................ 29
Section 7.02. EXECUTION AND AUTHENTICATION........................................................... 30
Section 7.03. FORM AND DATING........................................................................ 30
Section 7.04. PAYING AGENT AND CONVERSION AGENT...................................................... 31
ARTICLE 8 TERMINATION OF TRUST................................................................... 31
Section 8.01. TERMINATION OF TRUST................................................................... 31
ARTICLE 9 TRANSFER OF INTEREST................................................................... 32
Section 9.01. TRANSFER OF SECURITIES................................................................. 32
Section 9.02. TRANSFER OF CERTIFICATES............................................................... 33
Section 9.03. DEEMED SECURITY HOLDERS................................................................ 33
Section 9.04. BOOK ENTRY INTERESTS................................................................... 34
Section 9.05. NOTICES TO CLEARING AGENCY............................................................. 34
Section 9.06. APPOINTMENT OF SUCCESSOR CLEARING AGENCY............................................... 35
Section 9.07. DEFINITIVE TRUST PREFERRED SECURITY CERTIFICATES....................................... 35
Section 9.08. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES...................................... 35
ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS..................................................................... 36
Section 10.01. LIABILITY.............................................................................. 36
Section 10.02. EXCULPATION............................................................................ 36
Section 10.03. FIDUCIARY DUTY......................................................................... 37
Section 10.04. INDEMNIFICATION........................................................................ 38
Section 10.05. OUTSIDE BUSINESS....................................................................... 41
ARTICLE 11 ACCOUNTING............................................................................. 41
Section 11.01. FISCAL YEAR............................................................................ 41
Section 11.02. CERTAIN ACCOUNTING MATTERS............................................................. 41
Section 11.03. BANKING................................................................................ 42
Section 11.04. WITHHOLDING............................................................................ 42
ARTICLE 12 AMENDMENTS AND MEETINGS................................................................ 43
Section 12.01. AMENDMENTS............................................................................. 43
Section 12.02. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT....................... 44
ARTICLE 13 REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE................................................................... 46
Section 13.01. REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE................................ 46
Section 13.02. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE..................................... 46
ARTICLE 14 MISCELLANEOUS.......................................................................... 47
Section 14.01. NOTICES................................................................................ 47
Section 14.02. GOVERNING LAW.......................................................................... 48
Section 14.03. INTENTION OF THE PARTIES............................................................... 48
Section 14.04. HEADINGS............................................................................... 48
Section 14.05. SUCCESSORS AND ASSIGNS................................................................. 48
Section 14.06. PARTIAL ENFORCEABILITY................................................................. 49
Section 14.07. COUNTERPARTS........................................................................... 49
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
ANNEX I TERMS OF SECURITIES I-1
EXHIBIT A-1 FORM OF TRUST PREFERRED SECURITY
CERTIFICATE A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE A2-1
EXHIBIT B SPECIMEN OF DEBENTURE B-1
EXHIBIT C UNDERWRITING AGREEMENT C-1
</TABLE>
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<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Indenture Act Section of
of 1939, as amended Declaration
Declaration
<S> <C>
310(a)...................... 5.03(a)
310(c)...................... Inapplicable
311(c)...................... Inapplicable
312(a)...................... 2.02(a)
312(b)...................... 2.02(b)
313......................... 2.03
314(a)...................... 2.04
314(b)...................... Inapplicable
314(c)...................... 2.05
314(d)...................... Inapplicable
314(f)...................... Inapplicable
315(a)...................... 3.09(b)
315(c)...................... 3.09(a)
315(d)...................... 3.09(a)
316(a)...................... Annex I
316(c)...................... 3.06(e)
</TABLE>
* This Cross-Reference table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NUEVO FINANCING I
[ ], 199[ ]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [ ], 199[ ], by the Trustees (as defined herein),
the Sponsor (as defined herein) and by the holders, from time to time, of
undivided beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, certain of the Trustees and the Sponsor established Nuevo
Financing I (the "Trust"), a trust under the Business Trust Act (as defined
herein) pursuant to a Trust Agreement, dated as of [ ], 199[ ], (the
"Original Declaration") and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on [ ], 199[ ], for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Sponsor;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITION
Section 1.01. DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
<PAGE>
(d) all references in this Declaration to Articles and Sections and Annexes
and Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Conversion Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Base Indenture" means the Subordinated Indenture dated as of [ ],199[ ],
between the Sponsor and the Debenture Trustee.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.04.
"Business Day" means any day other than a Saturday, Sunday or any other day
on which banking institutions in New York, New York or Houston, Texas are
permitted or required by any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Trust Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Trust Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means [ ], 199[ ].
"Code" means the Internal Revenue Code of 1986, as amended from time to time,
or any successor legislation.
2
<PAGE>
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.01 .
"Common Securities Guarantee" means the guarantee agreement to be dated as
of [ ], 199[ ] of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Conversion Agent" has the meaning specified in Section 7.04.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Preferred Guarantee Trustee (as
defined in the Preferred Securities Guarantee Agreement dated as of [ ], 199[ ]
between the Sponsor and[ ]) shall, at any particular time,
be principally administered, which office at the date of execution of this
Declaration is located at ____________________________.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Debenture Trustee" means _________________, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
"Debentures" means the series of Debentures to be issued by the Sponsor
under the Indenture to be held by the Institutional Trustee, a specimen
certificate for such series of Debentures being Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.02.
"Definitive Trust Preferred Security Certificates" has the meaning set
forth in Section 9.04.
"Direct Action" has the meaning specified in Section 3.07.(e).
"Distribution" has the meaning set forth in Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
3
<PAGE>
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.04(b).
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Base Indenture as supplemented by the Supplemental
Indenture.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"Institutional Trustee Account" has the meaning set forth in Section
3.08(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I hereto.
"Legal Action" has the meaning set forth in Section 3.06(g).
"Majority in liquidation amount" of the Securities means, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Trust Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
4
<PAGE>
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer 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, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Sections 3.08(h) and 7.04.
"Payment Amount" has the meaning set forth in Section 6.01.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.01(b).
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Institutional Trustee, any
officer within the Corporate Trust Office of the Institutional Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Trust Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the Trust
Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Nuevo Energy Company ("Nuevo"), a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
5
<PAGE>
"Successor Delaware Trustee" has the meaning set forth in Section 5.07(b).
"Successor Entity" has the meaning set forth in Section 3.15.
"Successor Institutional Trustee" has the meaning set forth in Section
5.07(b).
"Successor Securities" has the meaning set forth in Section 3.15.
"Super Majority" has the meaning set forth in Section 2.06(a)(ii).
"Supplemental Indenture" means the First Supplemental Indenture dated as of
[ ], 199[ ] between the Sponsor and the Debenture Trustee pursuant to
which the Debentures are to be issued.
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as provided in
the terms of the Trust Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Trust Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Preferred Securities Guarantee" means the guarantee agreement to be
dated as of [ ], 199[ ], of the Sponsor in respect of the Trust
Preferred Securities.
"Trust Preferred Security" has the meaning specified in Section 7.01.
"Trust Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate representing a
Trust Preferred Security substantially in the form of Exhibit A-1.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a
6
<PAGE>
Trustee or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of Trust Preferred Securities in the form of Exhibit C.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Section 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.02. LIST OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Institutional Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Institutional Trustee. The Institutional Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity) provided that the Institutional Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
Section 311(a), 311(b) and 312(b) of the Trust Indenture Act.
7
<PAGE>
Section 2.03. REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Trust Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.04. PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such documents, reports and information as
may be required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Delivery of such reports, information and documents to the Institutional
Trustee is for informational purposes only and the Institutional Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Sponsor's compliance with any of its covenants hereunder (as to which the
Institutional Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.06. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default in respect of the Trust Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Trust Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust
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Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the Trust
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Trust
Preferred Securities or impair any right consequent thereon. Any waiver by the
Holders of the Trust Preferred Securities of an Event of Default with respect to
the Trust Preferred Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Event of Default with respect
to the Common Securities for all purposes of this Declaration without any
further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 2.06(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in this
Section 2.06(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion in liquidation
amount of the Common Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Trust Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Trust Preferred Securities and only the Holders of the Trust
Preferred Securities will have the right to direct the Institutional Trustee in
accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of Section 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.06(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Trust Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing
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provisions of this Section 2.06(c) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
Section 2.07. EVENT OF DEFAULT; NOTICE.
(a) The Institutional Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Institutional Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.07(a) being hereby defined to be
an Event of Default as defined in the Indenture, not including any periods of
grace provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures or in the payment of any
sinking fund installment established for the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Institutional Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1), 501(2) and 501(3) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.01. NAME.
The Trust is named "Nuevo Financing I" as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities and the other Trustees. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.02. OFFICE.
The address of the principal office of the Trust is c/o Nuevo Energy
Company, 1331 Lamar, Suite 1600, Houston, Texas 77010. On ten Business Days'
written notice to the Holders of Securities and the other Trustees, the Regular
Trustees may designate another principal office.
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Section 3.03. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Debentures, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incidental thereto. The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
Section 3.04. AUTHORITY.
Subject to the limitations provided in this Declaration and to the specific
duties of the Institutional Trustee, the Regular Trustees shall have exclusive
and complete authority to carry out the purposes of the Trust. An action taken
by the Regular Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and an action taken by the Institutional Trustee
on behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
Section 3.05. TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.08 with respect to the Debentures and the
Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
Section 3.06. POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Trust Preferred Securities and
no more than one series of Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous issuance of both
Trust Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
(i) file with the Commission the registration statement on Form S-3
prepared by the Sponsor, including any amendments thereto, pertaining
to the Trust Preferred Securities;
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(ii) file any documents prepared by the Sponsor, or take any acts as
determined by the Sponsor to be necessary in order to qualify or
register all or part of the Trust Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Trust
Preferred Securities for sale;
(iii)file an application, prepared by the Sponsor, to the New York Stock
Exchange, Inc. or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Trust
Preferred Securities;
(iv) file with the Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor, relating to
the registration of the Trust Preferred Securities under Section 12(b)
or 12(g) of the Exchange Act; and
(v) enter into the Underwriting Agreement providing for the sale of the
Trust Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the Trust
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the
Holders of the Trust Preferred Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee
before taking or refraining from taking any Ministerial Action in relation
to a Special Event;
(e) subject to Section 2(c) of Annex I hereto, to establish a record date
with respect to all actions to be taken hereunder that require a record
date be established, including and with respect to, for the purposes of
Section 316 (c) of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Trust Preferred Securities and Holders of Common Securities as to such
actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.08(e), the Institutional
Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
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(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Sponsor of its election to defer payments of
interest on the Debentures by extending the interest payment period under
the Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Trust Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the Debentures
will be treated as indebtedness of the Sponsor for United States
federal income tax purposes,
provided that such action does not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust.
The Regular Trustees must exercise the powers set forth in this Section
3.06 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.03, and the Regular Trustees shall not take any action that
is inconsistent with the purposes and functions of the Trust set forth in
Section 3.03.
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Subject to this Section 3.06, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.08.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.06
shall be reimbursed by the Sponsor.
Section 3.07. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Institutional
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise
any right to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion
of counsel to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
Section 3.08.LEGAL TITLE TO THE DEBENTURES.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Institutional Trustee in trust for the benefit of the Holders
of the Securities. The right, title and interest of the Institutional Trustee to
the Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.07. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
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(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
exclusive control of the Institutional Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make payments to the Holders of
the Trust Preferred Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with Section 6.01. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Institutional Trustee Account
shall be an account that is maintained with a banking institution (which
may be with the Institutional Trustee) the rating on whose long-term
unsecured indebtedness is at least equal to the rating assigned to the
Trust Preferred Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Trust Preferred Securities and
the Common Securities to the extent the Debentures are redeemed or mature;
and
(iii) upon written notice of Distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
Distribution of the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default of which a Responsible Officer of
the Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided, however, that the holders of a majority in liquidation amount of the
Trust Preferred Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a Holder of
the Debentures. If the Institutional Trustee fails to enforce its rights under
the Debentures, a holder of Trust Preferred Securities, to the extent permitted
by law, may institute a legal proceeding directly against Nuevo to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other
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Person; provided further, that, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Sponsor to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a Holder of Trust Preferred Securities may directly institute a proceeding
for enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Trust Preferred Securities of such Holder (a "Direct Action") on or after
the respective due date specified in the Debentures. In connection with such
Direct Action, the rights of the Holders of the Common Securities will be
subrogated to the rights of such Holder of Trust Preferred Securities to the
extent of any payment made by the Sponsor to such Holder of Trust Preferred
Securities in such Direct Action. Except as provided in the preceding sentences,
the Holders of Trust Preferred Securities shall have no right or power to
exercise directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.07.
(g) The Institutional Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the Indenture
and, if an Event of Default actually known to a Responsible Officer of the
Institutional Trustee occurs and is continuing, the Institutional Trustee shall,
for the benefit of Holders of the Securities, enforce its rights as holder of
the Debentures subject to the rights of the Holders pursuant to the terms of
such Securities.
(h) The Institutional Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) Subject to this Section 3.07, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.06.
The Institutional Trustee must exercise the powers set forth in this
Section 3.07 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.03, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.03.
Section 3.09. CERTAIN DUTIES AND RESPONSIBILITIES OF THE INSTITUTIONAL
TRUSTEE.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and
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no implied covenants or obligations shall be read into this Declaration against
the Institutional Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06(c)) of which a Responsible
Officer of the Institutional Trustee has actual knowledge, the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, 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.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this Declaration and
the Institutional Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Institutional Trustee;
and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional 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
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Institutional Trustee, the Institutional Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Institutional
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 shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
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(v) the Institutional Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Sponsor, and money held by the Institutional Trustee need not be
segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.08(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Institutional
Trustee be liable for any default or misconduct of the Regular Trustees or
the Sponsor.
Section 3.10. CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
(a) Subject to the provisions of Section 3.09:
(i) the Institutional Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) a direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
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(v) the Institutional Trustee may consult with counsel of its
selection or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion; such
counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees; and the Institutional Trustee shall have the
right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Institutional
Trustee;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
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;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive written
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Institutional Trustee (i) may request written
instructions from the Holders of the Securities which instructions may only
be given by the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Institutional Trustee under
the terms of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions;
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(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Institutional Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
Section 3.11. DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than Section
5.02, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.02, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
Section 3.12. EXECUTION OF DOCUMENTS.
Except as otherwise required by the Business Trust Act, any Regular Trustee
is authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.06.
Section 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
Section 3.14. DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article 8
hereof, shall have existence for thirty-five (35) years from the Closing Date.
Section 3.15. MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
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(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Trust Preferred Securities other
securities having substantially the same terms as the Trust Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust Preferred Securities rank with
respect to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly acknowledges a trustee of the Successor
Entity that possesses the same powers and duties as the Institutional
Trustee as the Holder of the Debentures;
(iii) the Trust Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization
on which the Trust Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of such Holders' interests in the
Trust Preferred Securities as a result of such merger, consolidation,
amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the
Holders' interest in the Successor Entity);
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(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided by
the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other Person or permit any
other Person to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE 4
SPONSOR
Section 4.01. SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount at least equal to 3% of the capital of the
Trust, at the same time as the Trust Preferred Securities are sold.
Section 4.02. RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Trust Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by, and execute on behalf of, the Trust with the
Commission a registration statement on Form S-3 in relation to the Trust
Preferred Securities and the Trust Preferred Securities Guarantees, including
any amendments thereto;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Trust Preferred Securities and the Trust
Preferred Securities Guarantees and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of actions it
must take, and prepare for filing and execute any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by, and execute on behalf of, the Trust an
application to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Trust Preferred Securities;
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(d) to prepare for filing by, and execute on behalf of, the Trust of
documents or instruments to be delivered to DTC relating to the Trust Preferred
Securities;
(e) to prepare for filing by, and execute on behalf of, the Trust with the
Commission a registration statement on Form 8-A relating to the registration of
the Trust Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto; and
(f) to negotiate the terms of, and execute on behalf of the Trust, the
Underwriting Agreement providing for the sale of the Trust Preferred Securities.
ARTICLE 5
TRUSTEES
Section 5.01. NUMBER OF TRUSTEES.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than two (2); provided further that (1) one Trustee shall
satisfy the requirements of Section 5.02; (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (a
"Regular Trustee"); and (3) one Trustee shall be the Institutional Trustee for
so long as this Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it
meets the applicable requirements.
Section 5.02. DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law; provided that, if the Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
Section 5.03. INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
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(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation or bank organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation, bank or other Person
permitted by the Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.03(a)(ii), the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be eligible to
so act under Section 5.03(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.07(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be: [ ]
Section 5.04. CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
Section 5.05. REGULAR TRUSTEES.
The initial Regular Trustees shall be:
Michael D. Watford
Robert L. Gerry III
Robert M. King
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees
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have power to act, any power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.06; and
(c) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.06.
Section 5.06. DELAWARE TRUSTEE.
The initial Delaware Trustee shall be: [ ]
Section 5.07. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.07(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities.
(b) (i) the Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.07(a) until a successor Institutional
Trustee (a "Successor Institutional Trustee") has been an appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.07(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.02 and 5.04 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Institutional
Trustee shall be effective:
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(A) Until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional Trustee; or
(B) Until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appointment a Successor Delaware Trustee or Successor Institutional
Trustee, as the case may be, if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.07.
(e) If no Successor Institutional Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.07 within 60 days after delivery of an instrument of resignation or removal,
the Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
Section 5.08. VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.01, or if the number of Trustees
is increased pursuant to Section 5.01, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.07.
Section 5.09. EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.07, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
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Section 5.10. MEETINGS
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustee or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
Section 5.11. DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.06; and
(b) the Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 5.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation or bank into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation or bank resulting from any
merger, conversion or consolidation to which the Institutional Trustee or the
Delaware Trustee, as the case may be, shall be a party, or any corporation or
bank succeeding to all or substantially all the corporate trust business of the
Institutional Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Institutional Trustee or the Delaware Trustee, as the case may
be, hereunder, provided such corporation or bank shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
such successor shall notify the Sponsor and the Trust promptly of its
succession.
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ARTICLE 6
DISTRIBUTIONS
Section 6.01. DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Trust Preferred Securities and the Common Securities in accordance
with the preferences set forth in their respective terms. If and to the extent
that the Sponsor makes a payment of interest (including Compounded Interest (as
defined in the Indenture) and Additional Interest (as defined in the
Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders.
ARTICLE 7
ISSUANCE OF SECURITIES
Section 7.01. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
convertible preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Annex I (the
"Trust Preferred Securities") and one class of convertible common securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Common Securities"). The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Trust Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Trust Preferred Securities as provided in this
Declaration, the Trust Preferred Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Trust Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
Section 7.02. EXECUTION AND AUTHENTICATION.
(a) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such
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Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Regular Trustee.
(b) One Regular Trustee shall sign the Trust Preferred Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Trust Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Institutional Trustee. The
signature shall be conclusive evidence that the Trust Preferred Security has
been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Trust Preferred Securities for
original issue.
The Institutional Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Trust Preferred Securities. An authenticating agent
may authenticate Trust Preferred Securities whenever the Institutional Trustee
may do so. Each reference in this Declaration to authentication by the
Institutional Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Institutional Trustee to deal with the Company
or an Affiliate of the Company.
Section 7.03. FORM AND DATING.
The Trust Preferred Securities and the Institutional Trustee's certificate
of authentication shall be substantially in the form of Exhibit A-1 and the
Common Securities shall be substantially in the form of Exhibit A-2, each of
which is hereby incorporated in and expressly made a part of this Declaration.
Certificates may be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as evidenced
by their execution thereof. The Securities may have letters, numbers, notations
or other marks of identification or designation and such legends or endorsements
required by law, stock exchange rule, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Trust). The Trust at the direction of the Sponsor shall
furnish any such legend not contained in Exhibit A-1 to the Institutional
Trustee in writing. Each Trust Preferred Security Certificate shall be dated the
date of its authentication. The terms and provisions of the Securities set forth
in Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are
part of the terms of this Declaration and to the extent applicable, the
Institutional Trustee and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
Section 7.04. PAYING AGENT AND CONVERSION AGENT.
In the event that the Trust Preferred Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent"). The Trust shall maintain an office or
agency where Securities may be presented for conversion ("Conversion Agent").
The Trust may appoint the Paying Agent and the Conversion Agent and may appoint
one or more additional paying agents and one or more additional conversion
agents in such other locations as it shall determine. The
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term "Paying Agent" includes any additional paying agent and the term
"Conversion Agent" includes any additional conversion agent. The Trust may
change any Paying Agent or Conversion Agent without prior notice to any Holder.
The Trust shall notify the Institutional Trustee in writing of the name and
address of any Agent not a party to this Declaration. If the Trust fails to
appoint or maintain another entity as Paying Agent or Conversion Agent, the
Institutional Trustee shall act as such. The Trust or any of its Affiliates may
act as Paying Agent or Conversion Agent. The Trust shall act as Paying Agent and
Conversion Agent for the Common Securities. The Paying Agent and Conversion
Agent shall be entitled to the rights and protections extended to the
Institutional Trustee when acting in such capacity.
The Trust initially appoints the Institutional Trustee as Conversion Agent
for the Trust Preferred Securities, and the Trust initially appoints
________________ as Paying Agent for the Trust Preferred Securities.
ARTICLE 8
TERMINATION OF TRUST
Section 8.01. TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor; the filing of a certificate of cancellation
with respect to the Trust after having obtained the consent of a majority
in liquidation amount of the Securities voting together as a single class
to file such certificate of cancellation or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a Special Event pursuant
to which the Trust shall have been dissolved in accordance with the terms
of the Securities and, after satisfaction of liabilities of creditors
(whether by payment or reasonable provision for payment), all of the
Debentures held by the Institutional Trustee shall have been distributed to
the Holders of Securities in exchange for all of the Securities;
(vi) upon the distribution of the Sponsor's common stock to all
Securities Holders upon conversion of all outstanding Trust Preferred
Securities;
(vii) the expiration of the term of the Trust on [________], [ ];
or
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(viii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.01(a), after satisfaction of liabilities of creditors (whether by
payment or reasonable provision for payment), the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Sections 3.09 and 3.10 and Article 10 shall survive
the termination of the Trust.
ARTICLE 9
TRANSFER OF INTERESTS
Section 9.01. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article 9, Trust Preferred Securities shall be freely
transferable.
(c) Subject to this Article 9, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States federal income
tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to register
under the Investment Company Act or the transferee would become an
Investment Company required to register under the Investment Company Act.
Section 9.02. TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered
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for registration of transfer shall be canceled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Declaration.
Section 9.03. DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 9.04. BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Trust Preferred Securities,
the Trust Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Trust Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Trust Preferred Security
Beneficial Owner will receive a definitive Trust Preferred Security Certificate
representing such Trust Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.07. Unless and until
definitive, fully registered Trust Preferred Security Certificates (the
"Definitive Trust Preferred Security Certificates") have been issued to the
Trust Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the Clearing
Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04 conflict with
any other provisions of this Declaration, the provisions of this Section 9.04
shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants,
including receiving and transmitting payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry
transfers among the Clearing Agency Participants; provided, that solely for the
purposes of determining whether the Holders of the requisite amount of Trust
Preferred Securities have voted on any matter provided for in this Declaration,
so long as Definitive Trust Preferred Security Certificates have not been
issued, the Trustees
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may conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Trust Preferred Security Beneficial Owners' votes or assigning
the right to vote on any matter to any other Persons either in whole or in part.
Section 9.05. NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Trust Preferred Security
Holders is required under this Declaration, unless and until Definitive Trust
Preferred Security Certificates shall have been issued to the Trust Preferred
Security Beneficial Owners pursuant to Section 9.07, the Regular Trustees shall
give all such notices and communications specified herein to be given to the
Trust Preferred Security Holders to the Clearing Agency, and shall have no
notice obligations to the Trust Preferred Security Beneficial Owners.
Section 9.06. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities, the Regular Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Trust Preferred Securities.
Section 9.07. DEFINITIVE TRUST PREFERRED SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with respect to the
Trust Preferred Securities,
then:
(c) Definitive Trust Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Trust Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Trust Preferred Security Certificates to be delivered to Trust
Preferred Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions of the Clearing Agency.
The Definitive Trust Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to
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comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Trust Preferred Securities
may be listed, or to conform to usage.
Section 9.08. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee or the Regular
Trustees such security or indemnity as may be required by them to keep each of
them harmless, then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, the Institutional Trustee or any Regular
Trustee on behalf of the Trust shall execute and deliver, in exchange for, or in
lieu of, any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.08, the Institutional Trustee or the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS.
Section 10.01. LIABILITY.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Trust Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
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Section 10.02. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 10.03. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
Section 10.04. INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified 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 Trust) by reason of the fact that
he is or was a Company Indemnified Person 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 Trust, 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 Company Indemnified 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 Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by law,
any Company Indemnified 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 Trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware 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 such
Court of Chancery or such other court shall deem proper.
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(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.04(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.04(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification
of the Company Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or
(3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.04(a) shall be paid by the Sponsor in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Sponsor as authorized in this Section 10.04(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Trust Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.04(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Sponsor
or Trust Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.04(a) shall be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such capacity at
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any time while this Section 10.04(a) is in effect. Any repeal or
modification of this Section 10.04(a) shall not affect any rights or
obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance on
behalf of any Person who is or was a Company Indemnified Person 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 Sponsor would have
the power to indemnify him against such liability under the provisions of
this Section 10.04(a)
(viii) For purposes of this Section 10.04(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.04(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.04(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify, to the fullest extent permitted by
law, (i) the Institutional Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, (iv) the Conversion Agent, (v) any Affiliate of the Institutional
Trustee, and the Delaware Trustee, and (vi) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee, the Paying Agent, the
Conversion Agent and the Delaware Trustee (each of the Persons in (i) through
(vi) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration or the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Sponsor also agrees to advance expenses (including legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an
undertaking by or on behalf of the Fiduciary Indemnified Person to repay such
amount if it shall be determined that the Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection. The
obligation to indemnify as set forth in this Section 10.04(b) shall survive the
satisfaction and discharge of this Declaration.
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Section 10.05. OUTSIDE BUSINESS.
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor of its Affiliates.
ARTICLE 11
ACCOUNTING
Section 11.01. FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section 11.02. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books, records and supporting documents,
which shall reflect in detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting in compliance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for the United States federal income
tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the Regular
Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Securities and the other Trustees, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the
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Regular Trustees shall endeavor to deliver all such statements within 30 days
after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
Section 11.03. BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for such accounts shall be designated by the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional Trustee Account.
Section 11.04. WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
Section 12.01. AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees);
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(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Institutional Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 9.01(c) and this Section 12.01 shall not be amended without the
consent of all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article 5 to
increase or decrease the number of and appoint and remove Trustees shall not be
amended
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without the consent of the Holders of a Majority in liquidation amount of the
Common Securities; and
(g) notwithstanding Section 12.01(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders.
Section 12.02. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Trust Preferred Securities are
listed or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more calls in a writing stating that
the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than
60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of Securities may be taken
without a meeting if a consent in writing setting forth the action so taken
is signed by the Holders of Securities owning not less than the minimum
amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote
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who have not consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holder for the purpose of
taking any action without a meeting shall be returned to the Trust within
the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Trust Preferred Securities are then listed or
trading, otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE 13
REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE AND DELAWARE TRUSTEE
Section 13.01. REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants, as applicable, to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a Michigan banking corporation with trust
powers, duly organized, validly existing and in good standing, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
the Declaration has been duly authorized by all necessary corporate action on
the part of the
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Institutional Trustee. The Declaration has been duly executed and delivered by
the Institutional Trustee, and it constitutes a legal, valid and binding
obligation of the Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any Michigan or federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
Section 13.02. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation [with trust powers],
duly organized, validly existing and in good standing, with full power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. The Delaware Trustee satisfies for the
Trust the requirements set forth in Section 3807(a) of the Business Trust Act.
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ARTICLE 14
MISCELLANEOUS
Section 14.01. NOTICESALL NOTICES PROVIDED FOR IN THIS DECLARATION SHALL
BE IN WRITING, DULY SIGNED BY THE PARTY GIVING SUCH NOTICE, AND SHALL BE
DELIVERED, TELECOPIED OR MAILED BY FIRST CLASS MAIL, AS FOLLOWS:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
Nuevo Financing I
c/o Nuevo Energy Company
1221 Lamar, Suite 1600
Houston, Texas 77010
Attention: Chief Financial Officer
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
-----------------------------
-----------------------------
-----------------------------
-----------------------------
(c) if given to the Institutional Trustee, at its Corporate Trust Office to
the attention of Corporate Trust Administration (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities);
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice to the Trust):
Nuevo Energy Company
1221 Lamar, Suite 1600
Houston, Texas 77010
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
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Section 14.02. GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
Section 14.03. INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
Section 14.04. HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 14.05. SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 14.06. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 14.07. COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
[______________], as Regular Trustee
[______________], as Regular Trustee
[______________], as Regular Trustee
_______________, as Delaware Trustee
By:
---------------------------------------
Name:
Title:
____________________, as Institutional Trustee
By:
---------------------------------------
Name:
Title:
Nuevo Energy Company, as Sponsor
By:
---------------------------------------
Name:
Title:
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EXHIBIT 23.1
Independent Accountant's Consent
The Board of Directors
Nuevo Energy Company:
We consent to the incorporation by reference in the registration statement
(No. 333-XXXXX) on Form S-3 of Nuevo Energy Company of our report dated February
16, 1996, relating to the consolidated balance sheets of Nuevo Energy Company as
of December 31, 1995 and 1994, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for each of the years
in the three-year period ended December 31, 1995, which report appears in the
December 31, 1995 annual report on Form 10-K of Nuevo Energy Company, and of our
reports dated December 20, 1995, relating to the statements of revenues and
direct operating expenses of the Point Pedernales Properties for each of the
years in the three-year period ended June 30, 1995, and dated February 12, 1996,
relating to the statements of revenues and direct operating expenses of the
Unocal Properties for each of the years in the three-year period ended June 30,
1995, which reports appear in the Form 8-K dated April 9, 1996, and to the
reference to our firm under the heading "Experts" in the prospectus.
Houston, Texas
November 14, 1996
