AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 1996
REGISTRATION NO. 333-12987
================================================================================
SECURITIES AND EXCHANGE COMMISSION
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NGC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3248415
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
13430 NORTHWEST FREEWAY, SUITE 1200
HOUSTON, TEXAS 77040
(713) 507-6400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
SEE "TABLE OF ADDITIONAL REGISTRANTS" ON THE FOLLOWING PAGE FOR INFORMATION
RELATING TO THE GUARANTORS OF THE SECURITIES REGISTERED HEREBY.
KENNETH E. RANDOLPH, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
13430 NORTHWEST FREEWAY, SUITE 1200
HOUSTON, TEXAS 77040
(713) 507-6400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT CONTAINS A COMBINED PROSPECTUS THAT ALSO RELATES TO $100,000,000 OF
DEBT SECURITIES REGISTERED ON FORM S-3, REGISTRATION NO. 33-97368, WHICH WAS
DECLARED EFFECTIVE ON DECEMBER 12, 1995 (THE "PREVIOUSLY REGISTERED
SECURITIES"). THIS REGISTRATION STATEMENT CONSTITUTES POST EFFECTIVE AMENDMENT
NO. 1 TO REGISTRATION STATEMENT NO. 33-97368 PURSUANT TO WHICH THE TOTAL AMOUNT
OF UNSOLD PREVIOUSLY REGISTERED SECURITIES MAY BE OFFERED AND SOLD AS DEBT
SECURITIES THROUGH THE USE OF THE COMBINED PROSPECTUS INCLUDED HEREIN. IN THE
EVENT ANY PREVIOUSLY REGISTERED SECURITIES ARE OFFERED AND SOLD PRIOR TO THE
EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, THE PREVIOUSLY REGISTERED
SECURITIES SO SOLD WILL NOT BE INCLUDED IN ANY PROSPECTUS HEREUNDER.
================================================================================
<PAGE>
TABLE OF ADDITIONAL REGISTRANTS
TO
FORM S-3 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NATURAL GAS CLEARINGHOUSE
WARREN NGL, INC.
WARREN PETROLEUM COMPANY, LIMITED PARTNERSHIP
WARREN ENERGY RESOURCES, LIMITED PARTNERSHIP
WARREN GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
WARREN GAS MARKETING, INC.
WARREN NGL PIPELINE COMPANY
KANSAS GAS SUPPLY CORPORATION
WARREN INTRASTATE GAS SUPPLY, INC.
NGC UK LIMITED
NGC CANADA, INC.
WTLPS, INC.
WPC LP, INC.
NGC FUTURES, INC.
ELECTRIC CLEARINGHOUSE, INC.
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
COLORADO 76-0461387
DELAWARE 75-2386656
DELAWARE 76-0507891
DELAWARE 76-0349052
DELAWARE 76-0467640
TEXAS 76-0311015
DELAWARE 73-1296245
DELAWARE 73-1175068
DELAWARE 13-1962688
DELAWARE 76-0465435
UNITED KINGDOM NOT APPLICABLE
ALBERTA NOT APPLICABLE
DELAWARE 76-0514228
DELAWARE 76-0507890
TEXAS 13-3466767
TEXAS 76-0425964
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
13430 NORTHWEST FREEWAY, SUITE 1200
HOUSTON, TEXAS 77040
(713) 507-6400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
KENNETH E. RANDOLPH, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
13430 NORTHWEST FREEWAY, SUITE 1200
HOUSTON, TEXAS 77040
(713) 507-6400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENTS FOR SERVICE)
<PAGE>
******************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR *
* SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH *
* OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR *
* QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. *
* *
******************************************************************************
SUBJECT TO COMPLETION, DATED OCTOBER 4, 1996
PROSPECTUS
$350,000,000
NGC CORPORATION
DEBT SECURITIES
---------------------------
NGC Corporation (the "Company" or "NGC") may offer from time to time
its unsecured debt securities consisting of notes, debentures or other evidences
of indebtedness (the "Securities") at an aggregate initial offering price of
not more than $350,000,000 or, if applicable, the equivalent thereof in any
other currency or currency unit. The Securities may be offered as separate
series in amounts, at prices and on terms to be determined in light of market
conditions at the time of sale and set forth in a Prospectus Supplement.
Specific terms of each series of Securities, including, where applicable,
the specific designation, aggregate principal amount, authorized denominations,
maturity, interest rate or rates (or method of determining the same) and time or
times of payment of any interest, any terms for optional or mandatory
redemption, which may include redemption at the option of holders upon the
occurrence of certain events, or payment of additional amounts or any sinking
fund provisions, the initial public offering price, the proceeds to the Company
and any other specific terms in connection with the offering and sale of such
series (the "Offered Securities") will be set forth in a Prospectus
Supplement. As used herein, the term "Securities" shall include securities
denominated in United States dollars or, at the option of the Company if so
specified in an applicable Prospectus Supplement, in any other currency or
currency unit, or in amounts determined by reference to an index. The Securities
will be general unsecured obligations of the Company and will rank PARI PASSU
with the Company's existing and future unsecured and unsubordinated
indebtedness. The Company is a holding company, conducting all of its business
through subsidiaries. The Company's obligations under the Securities will be
fully and unconditionally guaranteed by the following Subsidiaries of the
Company: Natural Gas Clearinghouse; Warren NGL, Inc.; Warren Petroleum Company,
Limited Partnership; Warren Energy Resources, Limited Partnership; Warren Gas
Liquids, Inc.; NGC Oil Trading and Transportation, Inc.; Warren Gas Marketing,
Inc.; Warren NGL Pipeline Company; Kansas Gas Supply Corporation; Warren
Intrastate Gas Supply, Inc.; NGC UK Limited; NGC Canada, Inc.; WTLPS, Inc.; WPC
LP, Inc.; NGC Futures, Inc.; and Electric Clearinghouse, Inc. See "Description
of Securities -- Subsidiary Guarantees." The Indenture generally does not
restrict the Company's ability to merge or sell the stock or assets of a
Subsidiary Guarantor, and certain of the Subsidiary Guarantees are subject to
release under certain circumstances. The Subsidiary Guarantees will rank senior
to the existing and future subordinated indebtedness of the Subsidiary
Guarantors. Neither the Company nor any of its Subsidiaries have any outstanding
indebtedness that is secured or senior to the Securities or the Subsidiary
Guarantees.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters
are involved in the sale of any Securities in respect of which this Prospectus
is being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The net
proceeds to the Company from such sale also will be set forth in a Prospectus
Supplement.
The Securities may be issued in registered form or bearer form with or
without coupons attached, or both. In addition, all or a portion of the
Securities of a series may be issuable in temporary or permanent global form.
Securities in bearer form may be offered only to non-United States persons and
to offices located outside the United States of certain United States financial
institutions.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
OCTOBER __, 1996
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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 Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549; and at the regional offices of the
Commission located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and at 7 World Trade Center, New York, New York 10048.
Copies of such material may be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains an Internet web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission (http://www.sec.gov).
Certain securities of the Company are listed on the New York Stock Exchange.
Reports, proxy statements and other information concerning the Company can be
inspected and copied at the office of the New York Stock Exchange at 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities offered hereby.
This Prospectus does not contain all of the information set forth in such
Registration Statement. Reference is made to such Registration Statement and to
the exhibits thereto for further information with respect to the Company and the
Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K/A for the year ended December
31, 1995, including the consolidated financial statements and schedule of NGC
and the report thereon by Arthur Andersen LLP and the financial statements of
Accord Energy Limited and the report thereon by Price Waterhouse, as filed with
the Commission on July 26, 1996, (ii) Quarterly Report on Form 10-Q/A for the
three-month period ended March 31, 1996, as filed with the Commission on July
29, 1996, (iii) Quarterly Report on Form 10-Q for the six-month period ended
June 30, 1996, as filed with the Commission on August 14, 1996, and (iv) Current
Reports on Form 8-K dated January 21, 1996, May 22, 1996, July 26, 1996, August
21, 1996 and August 31, 1996 are each hereby incorporated by reference herein.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities shall
be deemed to be incorporated herein by reference and to be a part hereof from
their respective dates of filing. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein or in the Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any and
all of the documents referred to above which have been incorporated in this
Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically
2
<PAGE>
incorporated by reference into such documents. Requests for such copies should
be directed to NGC Corporation, 13430 Northwest Freeway, Suite 1200, Houston,
Texas 77040, Attention: Investor Relations; (713) 507-6400.
UNCERTAINTY OF FORWARD-LOOKING STATEMENTS
This Prospectus, including any documents that are incorporated by reference
as set forth in "Incorporation of Certain Documents by Reference," contains
forward-looking statements. Such statements are typically indicated by words or
phrases such as "anticipate," "estimate," "projects," "management
believes," "the Company believes" and similar words or phrases. Such
statements are subject to certain risks, uncertainties or assumptions. Should
one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially from those
anticipated, estimated or projected. While various factors will influence the
outcome of those forward-looking statements, among the key factors that may have
a direct bearing on the Company's results of operations and financial condition
are: (i) competitive practices in the industries in which the Company competes,
(ii) fluctuations in energy commodity prices to the extent such prices have not
been hedged or which are inconsistent with the Company's net open position in
its energy marketing activities, (iii) environmental liabilities to which the
Company may be subject in the future which are not covered by an indemnity or
insurance, (iv) the ability of the Company to successfully integrate the
operations of the Company and the businesses contributed to the Company by
Chevron U.S.A. Inc. and certain of its affiliates on August 31, 1996, and (v)
the impact of current and future laws and governmental regulations (particularly
environmental regulations) affecting the energy industry in general and the
Company's operations in particular. Additional factors to consider in assessing
the risks and uncertainties of such forward-looking statements are detailed in
the Company's other filings with the Commission.
3
<PAGE>
THE COMPANY
The Company is a leading North American aggregator, processor, transporter
and marketer of energy products and services. NGC's integrated asset base
includes, among other things, interests in approximately 15,000 miles of natural
gas gathering and transmission pipelines, 56 gas processing plants, three
natural gas liquids ("NGLs") fractionation facilities, 60 million barrels of
NGL storage capacity, three NGL import / export marine terminals, ten other NGL
terminals and approximately 2,100 miles of NGL pipelines. NGC is also the
leading North American marketer of natural gas and NGLs and a leading U.S.
marketer of electric power.
NGC's business strategy, which it refers to as the "Energy Store"
concept, embraces a commercial approach to integrating commodity marketing, risk
management and production activities with the goal of maximizing value through a
unified operation. Acting in the role of a large scale aggregator, processor,
marketer and reliable supplier of multiple energy products and services, NGC is
able to customize or package products and services to meet individual client
specifications. NGC's management believes that the size and scope of NGC's
operations allow it to be cost-competitive and still provide the full complement
of services that energy customers demand while providing NGC cross-fuel and
interregional profit opportunities not readily available to smaller or single
commodity competitors.
The Company is a holding company which operates through its subsidiaries.
On August 31, 1996, the Company completed a strategic combination (the "Chevron
Combination") with Chevron U.S.A. Inc. and certain Chevron affiliates
("Chevron") pursuant to which Chevron contributed substantially all of its
midstream assets (the "Contribution"), including substantially all of the
assets comprising Warren Petroleum Company and Chevron's Natural Gas Business
Unit and an undivided 49% interest in those assets that constitute the West
Texas LPG Pipeline, into Midstream Combination Corp. ("Midstream"), a Delaware
corporation formed for purposes of the transaction. Immediately following the
Contribution, NGC, which was formed effective March 1, 1995, pursuant to a
strategic business combination between Natural Gas Clearinghouse
("Clearinghouse") and Trident NGL Holding, Inc., was merged with and into
Midstream and renamed NGC Corporation. In connection with the Chevron
Combination, NGC and Chevron and certain of their affiliates also entered into
certain ancillary supply, sales and service agreements with respect to natural
gas, NGLs and electricity, pursuant to which, among other things, NGC will have
the right to (i) purchase and/or market substantially all the natural gas and
NGLs produced or controlled by Chevron in the United States (except Alaska) and
to supply natural gas and feedstocks to Chevron refineries and chemical plants
in the United States and (ii) participate in existing and future opportunities
to provide electricity to United States facilities of Chevron and its chemical
company affiliate, as well as to purchase or market excess electricity generated
by those facilities. The Company believes that its strategic alliances with
Chevron will further enhance NGC's position as a leading marketer of energy
products and its business strategy of being an "Energy Store" providing
creative energy solutions for its customers. In connection with the Chevron
Combination, NGC has agreed with the Federal Trade Commission to divest its
ownership interest in one of its three NGL fractionation facilities and to
relinquish operatorship at a second fractionation facility.
Following the Chevron Combination, British Gas plc ("British Gas"), NOVA
Corporation ("NOVA") and Chevron each directly or indirectly owns
approximately 25.8% of the outstanding shares of common stock of the Company. In
addition, Chevron owns all of the outstanding shares of the Company's Series A
Participating Preferred Stock, which are convertible into shares of the
Company's common stock upon the occurrence of certain events. If all the shares
of Series A Participating Preferred Stock were converted into shares of the
Company's common stock, British Gas and NOVA would each own 24.5% of the common
stock and Chevron would own 29.5% of the common stock.
4
<PAGE>
USE OF PROCEEDS
Except as may otherwise be described in the Prospectus Supplement relating
to an offering of Securities, the net proceeds from the sale of the Securities
will be used for general corporate purposes. Any allocation of the net proceeds
of an offering of Securities to a specific purpose will be determined at the
time of such offering and will be described in the related Prospectus
Supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown. The computation for each of the
years ended December 31, 1991 through 1994 includes only the consolidated
results of Clearinghouse and its subsidiaries. The computation for 1995 includes
the consolidated results of Clearinghouse and its subsidiaries for the full
year, and of Trident NGL Holding, Inc. and its subsidiaries from March 1, 1995,
the effective date of the Trident Combination.
NGC CORPORATION
- ------------------------------- NATURAL GAS CLEARINGHOUSE
SIX MONTHS YEAR ENDED YEARS ENDED DECEMBER 31,
ENDED JUNE 30, DECEMBER 31, ------------------------------------------
1996 1995 1994 1993 1992 1991
- -------------- ------------ --------- --------- --------- ---------
3.36 2.48 13.08 19.18 11.84 10.12
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income before income taxes and fixed charges (excluding
capitalized interest and depreciation of interest previously capitalized) less
undistributed income from equity investees. Fixed charges consist of (i) the
Company's interest expense, (ii) amortization of deferred financing costs, (iii)
interest capitalized during the year and (iv) the portion of the Company's lease
rental expense representative of the interest factor attributable to such
leases. Such ratios do not give effect to the Chevron Combination, which was
completed on August 31, 1996.
A statement setting forth the computation of the ratios of earnings to
fixed charges is filed as an exhibit to the Registration Statement.
5
<PAGE>
DESCRIPTION OF SECURITIES
The Securities will be issued under an indenture dated as of September 26,
1996 (the "Indenture") between the Company, as issuer, the Subsidiary
Guarantors and The First National Bank of Chicago, as trustee (the "Trustee"),
a form of which is filed as an exhibit to the Registration Statement. The
statements under this caption are summaries of certain provisions of the
Indenture. Wherever particular Sections of the Indenture or terms not defined
herein that are defined in the Indenture are referred to herein or in a
Prospectus Supplement, it is intended that such Sections or defined terms shall
be incorporated by reference herein or therein, as the case may be.
The Securities may be issued from time to time in one or more series. The
particular terms of each series of Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indenture does not limit the amount of Securities, debentures, notes or
other evidences of indebtedness that may be issued by the Company or any of its
subsidiaries, nor does it restrict transactions between the Company and its
affiliates or dividends and other distributions by the Company to its
stockholders. In addition, other than as set forth under "-- Limitation on
Liens," there are no provisions of the Indenture that afford holders of the
Securities protection in the event of either a change in control of the Company
or a highly leveraged transaction involving the Company.
Securities may be issued under the Indenture from time to time in separate
series up to an aggregate amount from time to time authorized by the Company for
such series. The Securities will be unsecured obligations of the Company and
will rank on a parity with all other unsecured and unsubordinated indebtedness
of the Company unless the Company is required to secure the Securities pursuant
to the Indenture provisions described below under "-- Limitation on Liens."
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the Offered Securities: (1) the title of the
Offered Securities; (2) any limit on the aggregate principal amount of the
Offered Securities; (3) whether the Offered Securities are to be issuable as
Registered Securities or Bearer Securities, or both, whether any of the Offered
Securities are to be issuable initially in temporary global form and whether any
of the Offered Securities are to be in permanent global form; (4) the price or
prices (expressed as a percentage of the aggregate principal amount thereof) at
which the Offered Securities will be issued; (5) the date or dates on which the
Offered Securities will mature; (6) the rate or rates per annum (or the method
by which such will be determined) at which the Offered Securities will bear
interest, if any, and the date from which any such interest will accrue and
whether, and under what circumstances, additional amounts with respect to such
Securities shall be payable; (7) the Interest Payment Dates on which any such
interest on the Offered Securities will be payable, the Regular Record Date for
any interest payable on any Offered Securities which are Registered Securities
on any Interest Payment Date and the extent to which, or the manner in which,
any interest payable on a temporary global Offered Security on an Interest
Payment Date will be paid; (8) any mandatory or optional sinking fund or
analogous provisions; (9) each office or agency where, subject to the terms of
the Indenture as described below under "Payment and Paying Agents," the
principal of and any premium and interest on the Offered Securities will be
payable and each office or agency where, subject to the terms of the Indenture
as described below under "Form, Exchange, Registration and Transfer," the
Offered Securities may be presented for registration of transfer or exchange;
(10) the right of the Company to redeem the Offered Securities at its option and
the period or periods, if any, within which and the price or prices at which the
Offered Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, in whole or in part, and the other detailed terms and
provisions of any such optional or mandatory redemption; (11) the denominations
in which any Offered Securities which are Registered Securities will be
issuable, if other than in denominations of $1,000 and any integral multiple
thereof, and the denomination or denominations in which any Offered Securities
which are Bearer Securities will be issuable, if other than in denominations of
$5,000; (12) the currency or currencies (including composite currencies) in
which payment of principal of and any
6
<PAGE>
premium and interest on the Offered Securities is payable; (13) any index used
to determine the amount of payments of principal of and any premium and interest
on the Offered Securities; (14) information with respect to book-entry
procedures, if any; and (15) any other terms of the Offered Securities not
inconsistent with the provisions of the Indenture. (Section 301) Any such
Prospectus Supplement will also describe any special provisions for payment of
additional amounts with respect to the Offered Securities.
Securities may be issued as Original Issue Discount Securities. An Original
Issue Discount Security is a Security, including any Zero-Coupon Security, which
is issued at a price lower than the amount payable upon the Stated Maturity
thereof and which provides that upon redemption or acceleration of the maturity
thereof, an amount less than the amount payable upon the Stated Maturity thereof
and determined in accordance with the terms of such Security shall become due
and payable. Special United States federal income tax considerations applicable
to Securities issued at an original issue discount, including Original Issue
Discount Securities, and special United States tax considerations and other
terms and restrictions applicable to any Securities issued in bearer form,
offered exclusively to United States Aliens or denominated in other than United
States dollars, will be set forth in a Prospectus Supplement relating thereto.
The Securities will be general unsecured obligations of the Company and
will rank PARI PASSU with the Company's existing and future unsecured and
unsubordinated indebtedness. The Company is a holding company, conducting all of
its business through subsidiaries. Accordingly, the ability of the Company to
meet its obligations under the Indenture and the Securities will be dependent on
the earnings and cash flows of its subsidiaries and the ability of its
subsidiaries to pay dividends or to advance funds to the Company. The
obligations of the Company under the Securities will be guaranteed on a senior
unsecured basis by the Subsidiary Guarantors. See " -- Subsidiary Guarantees."
The Subsidiary Guarantees will rank senior to the existing and future
subordinated indebtedness of the Subsidiary Guarantors.
The Company has direct and indirect subsidiaries ("Non-Guarantor
Subsidiaries") that are not included among the Subsidiary Guarantors, and the
Indenture does not restrict the incurrence of debt by such subsidiaries.
Although none of the Company's consolidated debt as of September 3, 1996 was
indebtedness of a Non-Guarantor Subsidiary, such subsidiaries could incur
indebtedness in the future. If a Non-Guarantor Subsidiary incurs debt, the
rights of the holders of Securities to participate in the assets of any
Non-Guarantor Subsidiary upon its liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors.
SUBSIDIARY GUARANTEES
The obligations of the Company under the Securities will be fully and
unconditionally guaranteed, jointly and severally, on a senior unsecured basis
by the Subsidiary Guarantors, subject to release as described below and under
the caption "Consolidation, Merger and Sale of Assets." Initially, the
Subsidiary Guarantors will consist of Clearinghouse, Warren NGL, Inc., formerly
Trident NGL, Inc., ("Warren NGL"), Warren Petroleum Company, Limited
Partnership ("Warren Petroleum"), Warren Gas Liquids, Inc., formerly NGC
Liquids Marketing, Inc., ("Warren Liquids"), NGC Oil Trading and
Transportation, Inc. ("NOTTI", and, together with Clearinghouse, Warren NGL,
Warren Petroleum and Warren Liquids, the "Primary Guarantors") and Warren
Energy Resources, Limited Partnership, formerly NGC Energy Resources, Limited
Partnership, ("Warren Energy Resources"), Warren Gas Marketing, Inc., formerly
Trident Gas Marketing, Inc., ("Warren Marketing"), Warren NGL Pipeline
Company, formerly Trident NGL Pipeline Company, ("Warren Pipeline"), Kansas
Gas Supply Corporation ("Kansas Gas"), Warren Intrastate Gas Supply, Inc.,
formerly Trident Acquisition Corp. ("WIGS"), NGC UK Limited ("NGC UK"), NGC
Canada, Inc. ("NGC Canada"), WTLPS, Inc. ("WTLPS"), WPC LP, Inc. ("WPC"),
NGC Futures, Inc. ("NGC Futures"), Electric Clearinghouse, Inc. ("ECI") and
any other Subsidiary of the Company that is added as a Subsidiary Guarantor
after the date hereof (collectively, the "Secondary Guarantors").
The Subsidiary Guarantees will be general unsecured obligations of each
respective Subsidiary Guarantor and will rank PARI PASSU in right of payment
with all existing and future unsecured and
7
<PAGE>
unsubordinated indebtedness of such Subsidiary Guarantor. (Section 1501) Each of
the Subsidiary Guarantors is also a guarantor of the Company's obligations under
its bank credit facility and $150,000,000 in aggregate principal amount of the
Company's 6 3/4% Senior Notes due 2005 (the "6 3/4% Senior Notes") issued
pursuant to an Indenture dated December 11, 1995. Each of the guarantors of the
Company's bank credit facilities and the 6 3/4% Senior Notes is also a
Subsidiary Guarantor of the Securities, except NGC Storage, Inc., HUB Services,
Inc. and NGC Anardarko Gathering Systems, Inc.
The Indenture provides that if any Subsidiary of the Company (other than
NGC Storage, Inc., HUB Services, Inc. or NGC Anardarko Gathering Systems, Inc.)
guarantees or becomes primarily obligated with respect to any Funded
Indebtedness of the Company, other than the Securities, at any time subsequent
to the date on which the Securities are originally issued, then the Company will
cause the Securities to be equally and ratably guaranteed by such Subsidiary.
(Section 1505) The Indenture also provides that a Secondary Guarantor, but not a
Primary Guarantor, may be released from its Subsidiary Guarantee if such
Secondary Guarantor is not a guarantor of or primary obligor under any Funded
Indebtedness of the Company other than the Securities, provided that no Event of
Default under the Indenture has occurred and is continuing. (Section 1506)
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal, state or foreign law. (Section 1502)
Warren NGL, one of the Company's wholly owned subsidiaries and a Primary
Guarantor, has $65,000,000 in senior subordinated notes due 2001 and
$105,000,000 in junior subordinated notes due 2003 outstanding pursuant to
indentures which Warren NGL entered into prior to the Trident Combination (the
"Warren NGL Indentures"). The Indenture provides that the obligation of Warren
NGL under its Subsidiary Guarantee will not exceed the maximum amount that
Warren NGL can guarantee without violating the terms of the Warren NGL
Indentures. (Section 1502) The Warren NGL Indentures contain certain covenants
which, in certain circumstances, limit the amount of debt that Warren NGL can
incur or guarantee. The Warren NGL Indenture relating to the senior subordinated
notes permits, among other things, Warren NGL to incur or guarantee debt to the
extent permitted by Warren NGL's bank facility (as defined in such indenture).
The Warren NGL Indenture relating to the junior subordinated notes permits,
among other things, Warren NGL to incur or guarantee debt subject to a cash flow
to fixed charges coverage test. The Company will not issue Securities under the
Indenture unless Warren NGL meets such incurrence tests at the time of issuance.
Warren NGL currently satisfies both of these incurrence tests. Accordingly, the
Company believes that Warren NGL's full and unconditional guarantee of the
Company's obligations under the Securities is permitted by the Warren NGL
Indentures (subject to the fraudulent conveyance or transfer issues addressed in
the preceding paragraph). Certain parties may assert, however, that the amount
of Warren NGL's guarantee of the Company's obligations under the Securities is
limited in the event the guarantee is called upon by Holders of the Securities.
Rights of subrogation under the Subsidiary Guarantees will be subordinated
to the prior right of holders of the Securities to be paid in full. (Section
1510)
Separate financial statements of each Subsidiary Guarantor have not been
provided because management has determined that such information would not be
material to investors as the aggregate assets, liabilities, earnings and equity
of the Subsidiary Guarantors is substantially equivalent to the Company's
consolidated assets, liabilities, earnings and equity. The Company also has
direct and indirect subsidiaries that are not Subsidiary Guarantors. These
non-guarantor subsidiaries, both individually and in the aggregate, are
inconsequential to NGC (and its accounting predecessor, Clearinghouse) as of and
for each of the three years ended December 31, 1995 and as of and for the six
months ended June 30, 1996.
8
<PAGE>
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, Bearer Securities will have interest coupons attached.
(Section 201) The Indenture also will provide that Securities of a series may be
issuable in temporary or permanent global form. (Section 201)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Securities of any
series are issuable as both Registered Securities and Bearer Securities, at the
option of the Holder upon request confirmed in writing, and subject to the terms
of the Indenture, Bearer Securities (with all unmatured coupons, except as
provided below, and all matured coupons in default) of such series will be
exchangeable for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. Bearer
Securities surrendered in exchange for Registered Securities between a Regular
Record Date or a Special Record Date and the relevant date for payment of
interest shall be surrendered without the coupon, relating to such date for
payment of interest, and interest accrued as of such date will not be payable in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holders of such coupon, when due in accordance
with the terms of the Indenture. Bearer Securities will not be issued in
exchange for Registered Securities. (Section 305)
Securities may be presented for exchange as provided above, and Registered
Securities may be presented for registration or transfer (with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose with respect to any series of Securities and referred to in an
applicable Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the Indenture. Such
transfer or exchange will be effected upon the Security Registrar or any such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Company has appointed the
Trustee as Security Registrar. (Section 305) If a Prospectus Supplement refers
to any transfer agent (in addition to the Security Registrar) initially
designated by the Company with respect to any series of Securities, the Company
may at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that,
if Securities of a series are issuable solely as Registered Securities, the
Company will be required to maintain a transfer agent in each Place of Payment
for such series and, if Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain (in addition to the
Security Registrar) a transfer agent in a Place of Payment for such series
located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Securities. (Section
1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Securities of that series for redemption and ending on the close of
business on (A) if Securities of the series are issuable only as Registered
Securities, the day of mailing of the relevant notice of redemption and (B) if
Securities of the series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Securities of the series
are also issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption; (ii) register the transfer or
exchange of any Registered Security, or portion thereof, called for redemption,
except the unredeemed portion of any Registered Security being redeemed in part;
or (iii) exchange any Bearer Security called for redemption, except to exchange
such Bearer Security for a Registered Security of that series and like tenor
which is immediately surrendered for redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, and any premium and interest on, Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as the Company may designate from time
to
9
<PAGE>
time, in the manner indicated in such Prospectus Supplement. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Bearer Securities on any Interest Payment Date will be made only
against surrender to the Paying Agent of the coupon relating to such Interest
Payment Date. (Section 1001) No payment with respect to any Bearer Security will
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal of, and any premium and interest on, Bearer
Securities denominated and payable in U.S. dollars will be made at the offices
of the Company's Paying Agent in the Borough of Manhattan, the City of New York,
if (but only if) payment of the full amount thereof in U.S. dollars at all
offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, and any premium and interest on, Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made by check mailed on or before the due date to the
address of the Person entitled thereto as such address shall appear in the
Security Register. (Sections 307, 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the Person in whose name such Registered
Security is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee at its Corporate Trust Office will be designated as a Paying Agent for
the Company for payments with respect to Securities which are issuable solely as
Registered Securities, and the Company will maintain a Paying Agent outside the
United States for payments with respect to Securities (subject to the
limitations described above in the case of Bearer Securities) which are issuable
solely as Bearer Securities or as both Registered Securities and Bearer
Securities. Any Paying Agents outside the United States and any other Paying
Agents in the United States initially designated by the Company for the
Securities will be named in an applicable Prospectus Supplement. The Company may
at any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that, if Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Securities of a series are issuable as
Bearer Securities, the Company will be required to maintain (i) a Paying Agent
in the Borough of Manhattan, the City of New York, for principal payments with
respect to any Registered Securities of the series (and for payments with
respect to Bearer Securities of the series in the circumstances described above,
but not otherwise), and (ii) a Paying Agent in a Place of Payment located
outside the United States where Securities of such series and any coupons
appertaining thereto may be presented and surrendered for payment. (Section
1002)
All monies paid by the Company to a Paying Agent for the payment of
principal of or any premium or interest on any Security which remain unclaimed
at the end of two years after such principal, premium or interest shall have
become due and payable will (subject to applicable escheat laws) be repaid to
the Company, and the Holder of such Security or any coupon will thereafter look
only to the Company for payment thereof. (Section 1003)
GLOBAL SECURITIES
Securities of a series may be issued in whole or in part in the form of one
or more global Securities that will be deposited with, or on behalf of, a
depository identified in the Prospectus Supplement relating to such series.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form. (Section 203) Unless and until it is
exchanged in whole or in part for the individual Securities represented thereby,
a global Security may not be transferred except as a whole by the depository for
such global Security to a nominee of such depository or by a nominee of such
depository to such depository or another nominee of such depository or by the
depository or any nominee to a successor depository or any nominee of such
successor.
10
<PAGE>
The specific terms of the depository arrangement with respect to a series
of Securities and certain limitations and restrictions relating to a series of
Bearer Securities in the form of one or more global Securities will be described
in the Prospectus Supplement relating to such series.
CERTAIN DEFINITIONS
"Funded Indebtedness" means all outstanding indebtedness (including
indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the option
of any obligor thereon to a date, more than one year after the date on which
such indebtedness is originally incurred. (Section 101)
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (i) total current liabilities (excluding current maturities of
long-term debt and preferred stock); (ii) all reserves for depreciation and
other asset valuation reserves; (iii) all intangible assets such as goodwill,
trademarks, trade names, patents and unamortized debt discount and expense
carried as an asset; and (iv) all appropriate adjustments on account of minority
interests of other Persons holding common stock in any Subsidiary. (Section 101)
"Principal Property" means any natural gas, natural gas liquids or crude
oil pipeline, distribution system, gathering system, storage facility or
processing plant, except any such property that in the opinion of the Board of
Directors of the Company is not of material importance to the business conducted
by the Company and its consolidated Subsidiaries taken as a whole. (Section 101)
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property. (Section 101)
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, or (ii) any partnership or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned. For the purposes of this
definition, "securities having ordinary voting power" means securities or
other equity interests which ordinarily have voting power for the election of
directors, or persons having management power with respect to the Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency. (Section 101)
"Subsidiary Guarantee" means any guarantee of the Securities by any
Subsidiary Guarantor in accordance with the provisions set forth in
"-- Subsidiary Guarantees." (Section 101)
"Subsidiary Guarantor" means (i) each of Clearinghouse, Warren NGL,
Warren Petroleum, Warren Liquids and NOTTI (which are referred to herein as the
"Primary Guarantors"); (ii) Warren Energy Resources, Warren Marketing, Warren
Pipeline, Kansas Gas, WIGS, NGC UK, NGC Canada, WTLPS, WPC, NGC Futures, ECI and
any other Subsidiary (direct or indirect) of the Company that delivers a
Subsidiary Guarantee pursuant to the provisions described under "-- Subsidiary
Guarantees" (which are referred to herein as the "Secondary Guarantors"); and
(iii) each of their respective successors and assigns, but excluding any
Subsidiary released from its Subsidiary Guarantee pursuant to the terms of the
Indenture. (Section 101)
LIMITATION ON LIENS
The Indenture provides that the Company will not, and will not permit any
Principal Subsidiary to, issue, assume or guarantee any indebtedness for money
borrowed ("Debt") if such Debt is secured by a mortgage, pledge, security
interest or lien (a "mortgage" or "mortgages") upon any Principal Property
of the Company or any Principal Subsidiary or upon any shares of stock or
indebtedness of any Principal Subsidiary (whether such Principal Property,
shares of stock or indebtedness is now owned or hereafter acquired) without in
any such case effectively providing that the Securities shall be secured equally
and ratably with (or prior to) such Debt, except that the foregoing restrictions
shall not apply to: (a) mortgages on any property acquired, constructed or
improved by the Company or any Principal Subsidiary after the date of the
Indenture which are created within 180 days after such acquisition (or in the
case of property constructed or improved, after the completion and commencement
of commercial operation of such
11
<PAGE>
property, whichever is later) to secure or provide for the payment of the
purchase price or cost thereof; PROVIDED that in the case of such construction
or improvement the mortgages shall not apply to any property theretofore owned
by the Company or any Principal Subsidiary other than theretofore unimproved
real property; (b) existing mortgages on property acquired (including mortgages
on any property acquired from a Person which is consolidated with or merged with
or into the Company or a Subsidiary) or mortgages outstanding at the time any
corporation, partnership or trust becomes a Subsidiary that are not incurred in
connection with such entity becoming a Subsidiary; (c) mortgages in favor of
domestic or foreign governmental bodies to secure advances or other payments
pursuant to any contract or statute or to secure indebtedness incurred to
finance the purchase price or cost of constructing or improving the property
subject to such mortgages, including mortgages to secure Debt of the pollution
control or industrial revenue bond type; (d) mortgages in favor of the Company
or any Principal Subsidiary; (e) mortgages on any Principal Property held,
leased or used by the Company or any Principal Subsidiary in connection with the
exploration for, development of or production of (but not the gathering,
processing, transportation or marketing of) natural gas, oil or other minerals;
or (f) any extension, renewal or replacement (or successive extensions, renewals
or replacements), in whole or in part, of any mortgage referred to in the
foregoing clauses (a), (b), (c), (d) and (e). (Section 1006)
Notwithstanding the foregoing, the Company and any Principal Subsidiary
may, without securing the Securities, issue, assume or guarantee secured Debt
(which would otherwise be subject to the foregoing restrictions) in an aggregate
amount which, together with all other such Debt, does not exceed 15% of the Net
Tangible Assets, as shown on a consolidated balance sheet, prepared by the
Company in accordance with generally accepted accounting principles, as of a
date not more than 90 days prior to the proposed transaction. (Section 1006)
EVENTS OF DEFAULT
Any of the following events will constitute an Event of Default under the
Indenture with respect to Securities of any series: (a) failure to pay any
interest on any Security of that series when due, continued for 30 days; (b)
failure to pay principal of or any premium on any Security of that series when
due; (c) failure to deposit any sinking fund payment, when due, in respect of
any Security of that series; (d) any Subsidiary Guarantee (other than certain
Subsidiary Guarantees of Secondary Guarantors, as specified in the Indenture)
shall for any reason cease to be, or be asserted by the Company or any
Subsidiary Guarantor, as applicable, not to be, in full force and effect,
enforceable in accordance with the Indenture; (e) failure to perform any other
covenant of the Company or any Subsidiary Guarantor in the Indenture or a
Subsidiary Guarantee (other than a covenant included in the Indenture or a
Subsidiary Guarantee solely for the benefit of series of Securities other than
that series), continued for 90 days after written notice as provided in the
Indenture; (f) certain events in bankruptcy, insolvency or reorganization
involving the Company or a Subsidiary Guarantor; and (g) any other Event of
Default provided with respect to Securities of that series. (Section 501)
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of that
series, by notice as provided in the Indenture, may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable immediately.
At any time after a declaration of acceleration with respect to Securities of
any series has been made, but before a judgment or decree for payment of money
has been obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 502)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series
12
<PAGE>
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 that series;
PROVIDED, HOWEVER, that the Trustee shall not be obligated to take any action
unduly prejudicial to Holders not joining in such direction or involving the
Trustee in personal liability. (Section 512)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of its obligations under the Indenture and
as to any default in such performance. (Section 1007)
DEFEASANCE
If so specified with respect to any particular series of Securities, the
Company may discharge its indebtedness and its obligations and the obligations
of the Subsidiary Guarantors or certain of their respective obligations under
the Indenture with respect to such series by depositing funds or obligations
issued or guaranteed by the United States of America with the Trustee.
DEFEASANCE AND DISCHARGE
The Indenture provides that, if so specified with respect to the Securities
of any series, the Company and the Subsidiary Guarantors will be discharged from
any and all obligations in respect of the Securities of such series (except for
certain obligations relating to temporary Securities and exchange of Securities,
registration of transfer or exchange of Securities of such series, replacement
of stolen, lost or mutilated Securities of such series, maintenance of paying
agencies to hold moneys for payment in trust and payments of additional amounts,
if any, required in consequence of United States withholding taxes imposed on
payments to non-United States persons) upon the deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations which, through the payment of
interest and principal in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of (and premium, if
any), and each installment of interest on, the Securities of such series on the
Stated Maturity of such payments in accordance with the terms of the Indenture
and the Securities of such series. (Sections 1302 and 1304) Such a trust may
only be established if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of the Indenture there has been a change in applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge, and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had
not occurred. (Section 1304) In the event of any such defeasance and discharge
of Securities of such series, Holders of Securities of such series would be
entitled to look only to such trust fund for payment of principal of and any
premium and any interest on their Securities until Maturity.
DEFEASANCE OF CERTAIN OBLIGATIONS
The Indenture provides that, if so specified with respect to the Securities
of any series, the Company may omit to comply with certain restrictive
covenants, including the covenant described under " -- Limitation on Liens"
above, and any such omission shall not be an Event of Default with respect to
the Securities of such series, upon the deposit with the Trustee, in trust, of
money and/or U.S. Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of (and premium, if any), and
each installment of interest on, the Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the Indenture and the
Securities of such series. The obligations of the Company and the Subsidiary
Guarantors under the Indenture and the Securities of such series and any
Subsidiary Guarantees other than with respect to such covenants shall remain in
full force and effect. (Section 1303) Such a trust may be established only if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Securities of such series will not
13
<PAGE>
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance of certain obligations, and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred. (Section 1304)
Although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Securities of such series at the time of their Stated Maturity, in the event the
Company exercises its option to omit compliance with the covenants defeased with
respect to the Securities of any series as described above and the Securities of
such series are declared due and payable because of the occurrence of any Event
of Default, such amount may not be sufficient to pay amounts due on the
Securities of such series at the time of the acceleration resulting from such
Event of Default. The Company shall in any event remain liable for such payments
as provided in the Indenture.
FEDERAL INCOME TAX CONSEQUENCES
Under current United States federal income tax law, defeasance and
discharge would likely be treated as a taxable exchange of Securities to be
defeased for an interest in the defeasance trust. As a consequence, a holder
would recognize gain or loss equal to the difference between the holder's cost
or other tax basis for such Securities and the value of the holder's interest in
the defeasance trust, and thereafter would be required to include in income a
share of the income, gain or loss of the defeasance trust. Under current United
States federal income tax law, covenant defeasance would ordinarily not be
treated as a taxable exchange of such Securities.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company,
the Subsidiary Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of each
series affected by such modification or amendment; PROVIDED, HOWEVER, that no
such modification or amendment may, without consent of the Holder of each
Outstanding Security affected thereby, (a) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security;
(b) change the Redemption Date with respect to any Security; (c) reduce the
principal amount of, or premium or interest on, any Security; (d) change any
obligation of the Company to pay additional amounts; (e) reduce the amount of
principal of an Original Issue Discount Security payable upon acceleration of
the Maturity thereof; (f) change the coin or currency in which any Security or
any premium or interest thereon is payable; (g) change the redemption right of
any Holder; (h) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security; (i) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults; (j) reduce the requirements contained in the Indenture for quorum or
voting; (k) change any obligation of the Company to maintain an office or agency
in the places and for the purposes required by the Indenture; or (l) modify any
of the above provisions. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of the Holders of all Securities of
that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. (Section 1008) The
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Securities of that
series, waive any past default under the Indenture with respect to any
Securities of that series, except a default (a) in the payment of principal of,
or premium, if any, or any interest on any Security of such series or (b) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder, or are
present at a meeting of the Holders of Securities for quorum purposes, (i) the
principal
14
<PAGE>
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal that would be due and payable
as of the date of such determination upon acceleration of the Maturity thereof,
and (ii) the principal amount of a Security denominated in a foreign currency or
currency units shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount of such Security or,
in the case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined on the date of original issuance of such Security, of the amount
determined as provided in clause (i) above. (Section 101)
The Indenture contains provisions for convening meetings of the Holders of
Securities of a series if Securities of that series are issuable as Bearer
Securities. (Section 1401) A meeting may be called at any time by the Trustee,
and also, upon request by the Company or the Holders of at least 10% in
aggregate principal amount of the Outstanding Securities of that series, in any
such case upon notice given in accordance with the provisions described under
" -- Notices" below. (Section 1402) Except for any consent which must be given
by the Holders of each Outstanding Security affected thereby, as described
above, any resolution presented at a meeting (or adjourned meeting at which a
quorum is present) may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
PROVIDED, HOWEVER, that, except for any consent or waiver that must be given by
the Holder of each Outstanding Security affected thereby, as described above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Securities of a series, may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of such specified percentage in aggregate principal amount of
the Outstanding Securities of that series. Any resolution passed or decision
taken at any meeting of Holders of Securities of any series duly held in
accordance with the Indenture will be binding on all Holders of Securities of
that series and related coupons. The quorum at any meeting, and at any
reconvened meeting, will be Persons holding or representing a majority in
aggregate principal amount of the Outstanding Securities of a series. (Section
1404)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Securities under the Indenture, may consolidate with or merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, any
other Person which is a corporation, partnership or trust organized and validly
existing under the laws of any domestic jurisdiction, provided that any
successor Person assumes the Company's obligations on the Securities and under
the Indenture, that after giving effect to the transaction no Event of Default
shall have occurred and be continuing, and that certain other conditions are
met. (Section 801)
A Subsidiary Guarantor, without the consent of the Holders of any of the
Outstanding Securities under the Indenture, may consolidate with or merge into,
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other Person which is a corporation, partnership or trust
organized and validly existing under the laws of any domestic jurisdiction (or
in the case of a Subsidiary Guarantor organized under the laws of a jurisdiction
outside the United States, a corporation, partnership, trust or similar business
organization organized and existing under the laws of such foreign
jurisdiction); PROVIDED that, except to the extent the succeeding paragraph
would result in the release of the Subsidiary Guarantee of such Subsidiary
Guarantor, any successor Person assumes such Subsidiary Guarantor's obligations
on the Securities and under the Indenture, that after giving effect to the
transaction no Event of Default shall have occurred and be continuing, and that
certain other conditions are met. (Section 803)
In the event a Subsidiary Guarantor consolidates with or merges into, or
conveys, transfers or leases its properties and assets substantially as an
entirety to any other Person (other than the Company or another Subsidiary)
pursuant to a transaction that is otherwise in compliance with the terms of the
Indenture, such Subsidiary Guarantor shall be deemed to be released from its
Subsidiary Guarantee and all other obligations and covenants under the Indenture
to the extent that all guarantees and primary obligations of such
15
<PAGE>
Subsidiary Guarantor with respect to Funded Indebtedness of the Company (other
than the Securities) shall also terminate upon the consummation of such
transaction. (Section 805)
NOTICES
Except as otherwise provided in the Indenture, notices to Holders of Bearer
Securities will be given by publication at least twice in a daily newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities. Notices to Holders of Registered Securities will be given by
mail to the addresses of such Holders as they appear in the Security Register.
(Section 106)
TITLE
Title to any Bearer Securities (including Bearer Securities in permanent
global form) and any coupons appertaining thereto will pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any coupon and the registered
owner of any Registered Security as the owner thereof (whether or not such
Security or coupon shall be overdue and notwithstanding any notice to the
contrary) for the purpose of making payment and for all other purposes. (Section
308)
REPLACEMENT OF SECURITIES
Any mutilated Security or a Security with a mutilated coupon appertaining
thereto will be replaced by the Company at the expense of the Holder upon
surrender of such Security to the Trustee. Securities or coupons that become
destroyed, stolen or lost will be replaced by the Company at the expense of the
Holder upon delivery to the Trustee of the Security and coupons or evidence of
destruction, loss or theft thereof satisfactory to the Company and the Trustee;
in the case of any coupon which becomes destroyed, stolen or lost, such coupon
will be replaced by issuance of a new Security in exchange for the Security to
which such coupon appertains. In the case of a destroyed, lost or stolen
Security or coupon, an indemnity satisfactory to the Trustee and the Company may
be required at the expense of the Holder of such Security or coupon before a
replacement Security will be issued. (Section 306)
GOVERNING LAW
The Indenture, the Securities, coupons and Subsidiary Guarantees will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 113)
REGARDING THE TRUSTEE
The Company and certain affiliates from time to time borrow money from, and
maintain deposit accounts and conduct certain banking transactions with, The
First National Bank of Chicago in the ordinary course of their business. The
First National Bank of Chicago serves as agent and is a lender under the
Company's bank credit facility.
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee
will be permitted to engage in certain other transactions; however, if it
acquires any conflicting interest (as described in the Indenture), it must
eliminate such conflict or resign. (Section 608)
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to other purchasers or through agents.
The Prospectus Supplement with respect to the Securities offered thereby
will set forth the terms of the offering of such Securities, including the name
or names of any underwriters, dealers or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting compensation to underwriters, dealers or
agents, any initial public
16
<PAGE>
offering price, any discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers and any securities exchanges on which
such Securities may be listed.
If underwriters or dealers are used in the sale, the Securities will be
acquired by the underwriters or dealers for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more of such firms. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase such
Securities will be subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of the Securities offered by the Prospectus
Supplement if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of the Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such agent (or the
method by which such commissions can be determined) 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.
The Securities, when first issued, will have no established trading market.
Any underwriters or agents to or through whom Securities are sold by the Company
for public offering and sale may make a market in such Securities, but such
underwriters or agents will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any Securities.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against or contribution toward
certain liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may be customers of, engage in transactions
with, or perform services for the Company or its Subsidiaries in the ordinary
course of business.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by
Vinson & Elkins L.L.P., Houston, Texas, and will be passed upon for any agents,
dealers or underwriters by counsel named in the applicable Prospectus
Supplement.
EXPERTS
The audited consolidated financial statements and schedule of NGC
Corporation and subsidiaries, incorporated by reference in this Registration
Statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said report. Reference is made to such report,
which includes an explanatory paragraph with respect to the change in its method
of accounting for fixed price natural gas transactions to the mark-to-market
method of accounting.
The financial statements of Accord Energy Limited as of December 31, 1995
and 1994 and for the year ended December 31, 1995 and the period from December
2, 1993 to December 31, 1994, incorporated in this Prospectus by reference to
the Annual Report on Form 10-K/A of NGC Corporation for the year ended December
31, 1995, have been so incorporated in reliance on the report of Price
Waterhouse, Chartered Accountants and Registered Auditors, given on the
authority of said firm as experts in auditing and accounting.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the Company in
connection with the issuance and distribution of the securities being
registered. All the amounts shown are estimates, except the registration fee:
Registration Fee..................... $ 86,000
Fees and expenses of accountants..... 50,000
Fees and expenses of counsel......... 125,000
Fees and expenses of Trustee and
counsel.............................. 10,000
Printing............................. 50,000
Rating Agency Fees................... 150,000
Miscellaneous........................ 29,000
----------
Total........................... $ 500,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Certificate of Incorporation of NGC Corporation (the
"Company"), as amended, provides that, to the fullest extent permitted by
Delaware law, no director shall be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as director. By virtue of these
provisions, a director of the Company is not personally liable for monetary
damages for breach of such director's fiduciary duty except for liability for
(i) breach of duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) dividends or stock repurchases or redemptions that are
unlawful under the DGCL and (iv) any transaction from which such director
receives an improper personal benefit. In addition, the Certificate of
Incorporation provides that if the DGCL is amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
the directors will be eliminated or limited to the fullest extent permitted by
the DGCL, as amended. As a result, the rights of the Company and its
stockholders to obtain monetary damages for acts or omissions of directors will
be more limited than they would be in the absence of the limitation of liability
provision. The limitation of liability provision does not limit or affect a
stockholder's ability to seek and obtain relief under the federal securities
laws.
Section 145 of the DGCL permits indemnification upon a determination that
an officer or director has met the applicable standard of conduct. Such officer
or director is required to have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of a corporation and,
with respect to any criminal action, without reasonable cause to believe his
conduct was unlawful. Section 145 does not authorize indemnification in actions
brought by or in the right of a corporation with respect to any claim, issue or
matter as to which a director or officer is adjudged to be liable to the
corporation, unless specifically authorized by the Delaware Court of Chancery or
the court in which such action is brought. The Company's Certificate of
Incorporation provides for the mandatory indemnification of officers and
directors to the fullest extent permitted under the DGCL. Section 145 also
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
The above discussion of the Company's Certificate of Incorporation and of
Sections 102 and 145 of the DGCL is not intended to be exhaustive and is
qualified in its entirety by such Certificate of Incorporation and the DGCL.
The Company has purchased liability insurance policies covering its
directors and officers to insure against losses that are not covered by the
indemnification of directors and officers by the Company, as
II-1
<PAGE>
discussed above. Covered losses include those arising from any breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted by the directors or officers in their respective
capacities as such. The Company is also insured against losses incurred as a
result of indemnity payments to any director or officer.
ITEM 16. EXHIBITS.
2.1 -- Combination Agreement and Plan of Merger, dated as of October 21,
1994, among Trident NGL Holding, Inc., Natural Gas Clearinghouse and
certain entities parties thereto. (Incorporated by reference to
Exhibit 1 to the Current Report on Form 8-K of Trident NGL Holding,
Inc., dated October 21, 1994, Commission File Number 1-11156).
2.2 -- Combination Agreement and Plan of Merger dated as of May 22,
1996, among NGC Corporation, Chevron U.S.A. Inc. and Midstream
Combination Corp. (Incorporated by reference to Exhibit 1 to the
Current Report on Form 8-K of NGC Corporation dated May 22, 1996,
Commission File Number 1-11156).
4.1 -- Form of Indenture between NGC Corporation, the Subsidiary
Guarantors and The First National Bank of Chicago.
*4.2 -- Forms of Securities.
**5 -- Opinion of Vinson & Elkins L.L.P.
**12 -- Computation of ratios of earnings to fixed charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Price Waterhouse, Chartered Accountants and Registered
Auditors.
**23.3 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5).
**24.1 -- Powers of Attorney (included on the signature pages to this
Registration Statement).
24.2 -- Authorization to sign for Registrant.
**25 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of The First National Bank of
Chicago.
- ------------
* The Company will file any form of Securities not previously so filed as an
exhibit to a Current Report on Form 8-K which is incorporated by reference
into this Registration Statement.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to any charter provision, bylaw, contract, arrangement,
statute or otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
against the Company 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Company 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, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NGC CORPORATION
By: /s/ C. L. WATSON
C. L. WATSON
CHAIRMAN OF THE BOARD, CHIEF
EXECUTIVE
OFFICER, PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- ----------------------------------- ----------------
/s/C. L. WATSON* Chairman of the Board, October 4, 1996
C. L. WATSON Chief Executive Officer,
President and Director
(Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President and October 4, 1996
H. KEITH KAELBER Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/STEPHEN W. BERGSTROM* Senior Vice President October 4, 1996
STEPHEN W. BERGSTROM and Director
Director , 1996
STEPHEN J. BRANDON
Director , 1996
ROY ALAN GARDNER
Director , 1996
DAVID R. VARNEY
Director , 1996
C. KENT JESPERSEN
/s/JEFFREY M. LIPTON* Director October 4, 1996
JEFFREY M. LIPTON
/s/ALBERT TERENCE POOLE* Director October 4, 1996
ALBERT TERENCE POOLE
/s/DARALD W. CALLAHAN* Director October 4, 1996
DARALD W. CALLAHAN
/s/DONALD L. PAUL* Director October 4, 1996
DONALD L. PAUL
/s/PETER J. ROBERTSON* Director October 4, 1996
PETER J. ROBERTSON
/s/DANIEL L. DIENSTBIER* Director October 4, 1996
DANIEL L. DIENSTBIER
/s/J. OTIS WINTERS* Director October 4, 1996
J. OTIS WINTERS
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NATURAL GAS CLEARINGHOUSE
By: NGC Corporation, its general
partner
By: /s/ C. L. WATSON
C. L. WATSON
CHAIRMAN OF THE BOARD, CHIEF
EXECUTIVE
OFFICER, PRESIDENT AND DIRECTOR
OF NGC CORPORATION
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- (OF NGC CORPORATION) -------------------
---------------------------------
/s/C. L. WATSON* Chairman of the Board, October 4, 1996
C. L. WATSON Chief Executive Officer,
President and Director
(Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President and October 4, 1996
H. KEITH KAELBER Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/STEPHEN W. BERGSTROM* Senior Vice President October 4, 1996
STEPHEN W. BERGSTROM and Director
Director , 1996
STEVEN J. BRANDON
Director , 1996
ROY ALAN GARDNER
Director , 1996
DAVID R. VARNEY
Director , 1996
C. KENT JESPERSEN
II-6
<PAGE>
TITLE
NAME AND SIGNATURE (OF NGC CORPORATION) DATE
- ----------------------------- ------------------------- ----------------
/s/JEFFREY M. LIPTON* Director October 4, 1996
JEFFREY M. LIPTON
/s/ALBERT TERENCE POOLE* Director October 4, 1996
ALBERT TERENCE POOLE
/s/DARALD W. CALLAHAN* Director October 4, 1996
DARALD W. CALLAHAN
/s/DONALD L. PAUL* Director October 4, 1996
DONALD L. PAUL
/s/PETER J. ROBERTSON* Director October 4, 1996
PETER J. ROBERTSON
/s/DANIEL L. DIENSTBIER* Director October 4, 1996
DANIEL L. DIENSTBIER
/s/J. OTIS WINTERS* Director October 4, 1996
J. OTIS WINTERS
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN NGL, INC.
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- --------------------------------- -----------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President and October 4, 1996
H. KEITH KAELBER Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/C. L. WATSON* Director October 4, 1996
C. L. WATSON
/s/KENNETH E. RANDOLPH* Senior Vice President October 4, 1996
KENNETH E. RANDOLPH and Director
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN ENERGY RESOURCES, LIMITED
PARTNERSHIP
By: Warren Energy, Inc.,
its general partner
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
OF WARREN ENERGY, INC.
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.
TITLE
NAME AND SIGNATURE (OF WARREN ENERGY, INC.) DATE
- -------------------------- ----------------------------- ----------------
President and Director
(Principal Executive Officer)
/s/STEPHEN A. FURBACHER* Senior Vice President October 4, 1996
STEPHEN A. FURBACHER and Director
/s/H. KEITH KAELBER* (Principal Financial Officer and October 4, 1996
H. KEITH KAELBER Principal Accounting Officer)
Senior Vice President
and Director
/s/KENNETH E. RANDOLPH* October 4, 1996
KENNETH E. RANDOLPH
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN GAS LIQUIDS, INC.
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------ ----------------------------------- ----------------
/s/STEPHEN A. FURBACHER* President and Director (Principal October 4, 1996
STEPHEN A. FURBACHER Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President (Principal October 4, 1996
H. KEITH KAELBER Financial Officer and Principal
Accounting Officer)
Vice President and Director , 1996
WILLIAM A. ZARTLER
/s/KENNETH E. RANDOLPH* Senior Vice President October 4, 1996
KENNETH E. RANDOLPH and Director
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NGC OIL TRADING AND
TRANSPORTATION, INC.
By: /s/ JAMES H. CURRENT*
JAMES H. CURRENT
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- --------------------------------- ----------------
/s/JAMES H. CURRENT* President and Director October 4, 1996
JAMES H. CURRENT (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial Officer
and Principal Accounting
Officer)
/s/KENNETH E. RANDOLPH* Senior Vice President October 4, 1996
KENNETH E. RANDOLPH and Director
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NGC UK LIMITED
By: /s/ C. L. WATSON*
C. L. WATSON
CHAIRMAN OF THE BOARD AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------ ----------------------------------- ----------------
/s/C. L. WATSON* Chairman of the Board October 4, 1996
C. L. WATSON and Director
(Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER (Principal Financial Officer
and Principal Accounting Officer)
Director , 1996
JACOB S. ULRICH
/s/JAMES H. CURRENT* Director October 4, 1996
JAMES H. CURRENT
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NGC CANADA, INC.
By: /s/ MICHAEL J. CYRUS*
MICHAEL J. CYRUS
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------ ----------------------------------- ----------------
/s/MICHAEL J. CYRUS* President and Director October 4, 1996
MICHAEL J. CYRUS (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER (Principal Financial Officer
and Principal Accounting Officer)
/s/C. L. WATSON* Director October 4, 1996
C. L. WATSON
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN GAS MARKETING, INC.
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- ----------------------------------- ---------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY IN-FACT
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN NGL PIPELINE COMPANY
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- ---------------------------------- ----------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
KANSAS GAS SUPPLY CORPORATION
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- --------------------------- ------------------------------ ----------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN INTRASTATE
GAS SUPPLY, INC.
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- ------------------------------- -----------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WARREN PETROLEUM COMPANY,
LIMITED PARTNERSHIP
By: Warren Petroleum G.P., Inc., its
general partner
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
OF WARREN PETROLEUM G.P., INC.
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- (OF WARREN PETROLEUM G.P., INC.) -------------------
---------------------------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER (Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
/s/STEPHEN W. BERGSTROM* Director October 4, 1996
STEPHEN W. BERGSTROM
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WPC LP, INC.
By: /s/ H. KEITH KAELBER*
H. KEITH KAELBER
PRESIDENT
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- --------------------------------- -----------------
/s/H. KEITH KAELBER* President October 4, 1996
H. KEITH KAELBER (Principal Executive Officer,
Principal Financial Officer
and Principal Accounting Officer)
/s/CHARLES H. BROWNMAN* Director October 4, 1996
CHARLES H. BROWNMAN
/s/MARK J. GENTILE* Director October 4, 1996
MARK J. GENTILE
/s/JESSE A. FINKELSTEIN* Director October 4, 1996
JESSE A. FINKELSTEIN
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
WTLPS, INC.
By: /s/ STEPHEN A. FURBACHER*
STEPHEN A. FURBACHER
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- -------------------------- --------------------------------- ----------------
/s/STEPHEN A. FURBACHER* President and Director October 4, 1996
STEPHEN A. FURBACHER (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER (Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
/s/STEPHEN W. BERGSTROM* Director October 4, 1996
STEPHEN W. BERGSTROM
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
NGC FUTURES, INC.
By: /s/ STEPHEN W. BERGSTROM*
STEPHEN W. BERGSTROM
PRESIDENT AND DIRECTOR
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- --------------------------------- ----------------
/s/STEPHEN W. BERGSTROM* President and Director October 4, 1996
STEPHEN W. BERGSTROM (Principal Executive Officer)
/s/H. KEITH KAELBER* Senior Vice President October 4, 1996
H. KEITH KAELBER and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/KENNETH E. RANDOLPH* Director October 4, 1996
KENNETH E. RANDOLPH
/s/JOEL M. STAIB* Director October 4, 1996
JOEL M. STAIB
*By: /s/LISA Q. METTS
LISA Q. METTS
ATTORNEY-IN-FACT
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Houston, State of Texas, on October 4, 1996.
ELECTRIC CLEARINGHOUSE, INC.
By: /s/ STEPHEN W. BERGSTROM
STEPHEN W. BERGSTROM
PRESIDENT AND DIRECTOR
Each person whose signature appears below hereby appoints H. Keith Kaelber,
Kenneth E. Randolph and Lisa Q. Metts as his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and anything appropriate or necessary to be done, as fully
and for 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 their
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.
NAME AND SIGNATURE TITLE DATE
- ------------------------- ----------------------------------- ----------------
/s/STEPHEN W. BERGSTROM President and Director October 4, 1996
STEPHEN W. BERGSTROM
/s/H. KEITH KAELBER Senior Vice President October 4, 1996
H. KEITH KAELBER (Principal Financial
Officer and Principal
Accounting Officer)
/s/C. L. WATSON Director October 4, 1996
C. L. WATSON
/s/KENNETH E. RANDOLPH Director October 4, 1996
KENNETH E. RANDOLPH
/s/DAN W. RYNER Director October 4, 1996
DAN W. RYNER
II-22
EXHIBIT 4.1
NGC CORPORATION,
SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
---------------
INDENTURE
---------------
DATED AS OF SEPTEMBER 26, 1996
<PAGE>
NGC CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF SEPTEMBER 26, 1996
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss.310(a)(1) ............................................... 609
(a)(2) ................................................ 609
(a)(3) ................................................ Not Applicable
(a)(4) ................................................ Not Applicable
(a)(5) ................................................ 609
(b) ................................................ 608
(c) ................................................ Not Applicable
................................................ 610
ss.311(a) ............................................... 613
(b) ................................................ 613
(c) ................................................ Not Applicable
ss.312(a) ............................................... 701
................................................ 702
(b) ................................................ 702
(c) ................................................ 702
ss.313(a) ............................................... 703
(b) ................................................ 703
(c) ................................................ 703
(d) ................................................ 703
ss.314(a)(1)-(3)............................................... 704
(a)(4) ................................................ 101
................................................ 1004
(b) ................................................ Not Applicable
(c)(1) ................................................ 102
(c)(2) ................................................ 102
(c)(3) ................................................ Not Applicable
(d) ................................................ Not Applicable
(e) ................................................ 102
ss.315(a) ............................................... 601
(b) ................................................ 602
(c) ................................................ 601
(d) ................................................ 601
(e) ................................................ 514
(f) ................................................ Not Applicable
ss.316(a) ............................................... 101
(a)(1)(A) ................................................ 502
................................................ 512
(a)(1)(B) ................................................ 513
(a)(2) ................................................ Not Applicable
(b) ................................................ 508
(c) ................................................ 104
ss.317(a)(1) ............................................... 503
(a)(2) ................................................ 504
(b) ................................................ 1003
ss.318(a) ............................................... 108
- ---------------
<PAGE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
RECITALS OF THE COMPANY.......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION........................................................1
SECTION 101. Definitions.....................................................1
SECTION 102. Compliance Certificates and Opinions............................8
SECTION 103. Form of Documents Delivered to Trustee. ........................9
SECTION 104. Acts of Holders.................................................9
SECTION 105. Notices, Etc., to Trustee and Company..........................10
SECTION 106. Notice to Holders of Securities; Waiver. ......................11
SECTION 107. Language of Notices, Etc.......................................11
SECTION 108. Conflict with Trust Indenture Act. ............................12
SECTION 109. Effect of Headings and Table of Contents.......................12
SECTION 110. Successors and Assigns.........................................12
SECTION 111. Separability Clause............................................12
SECTION 112. Benefits of Indenture. ........................................12
SECTION 113. Governing Law..................................................12
SECTION 114. Legal Holidays.................................................12
ARTICLE TWO
SECURITY FORMS...............................................................12
SECTION 201. Forms Generally. ..............................................12
SECTION 202. Form of Trustee's Certificate of Authentication................13
SECTION 203. Securities in Global Form......................................13
SECTION 204. Form of Legend for Book-Entry Securities.......................14
SECTION 205. Form of Notation Relating to Subsidiary Guaranties.............14
ARTICLE THREE
THE SECURITIES...............................................................16
SECTION 301. Amount Unlimited; Issuable in Series...........................16
SECTION 302. Denominations..................................................18
SECTION 303. Execution, Authentication, Delivery and Dating.................18
SECTION 304. Temporary Securities...........................................20
SECTION 305. Registration, Registration of Transfer and Exchange............21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons...24
SECTION 307. Payment of Interest; Interest Rights Preserved.................25
SECTION 308. Persons Deemed Owners. ........................................26
SECTION 309. Cancellation...................................................26
SECTION 310. Computation of Interest........................................27
i
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE...................................................27
SECTION 401. Satisfaction and Discharge of Indenture........................27
SECTION 402. Application of Trust Money.....................................28
ARTICLE FIVE
REMEDIES.....................................................................28
SECTION 501. Events of Default..............................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............29
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................30
SECTION 504. Trustee May File Proofs of Claim...............................31
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons...................................................31
SECTION 506. Application of Money Collected.................................31
SECTION 507. Limitation on Suits. ..........................................32
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................33
SECTION 509. Restoration of Rights and Remedies.............................33
SECTION 510. Rights and Remedies Cumulative.................................33
SECTION 511. Delay or Omission Not Waiver...................................33
SECTION 512. Control by Holders of Securities...............................33
SECTION 513. Waiver of Past Defaults........................................34
SECTION 514. Undertaking for Costs..........................................34
SECTION 515. Waiver of Stay or Extension Laws...............................34
ARTICLE SIX
THE TRUSTEE..................................................................34
SECTION 601. Certain Duties and Responsibilities............................34
SECTION 602. Notice of Defaults.............................................35
SECTION 603. Certain Rights of Trustee......................................35
SECTION 604. Not Responsible for Recitals or Issuance of Securities.........36
SECTION 605. May Hold Securities............................................36
SECTION 606. Money Held in Trust............................................36
SECTION 607. Compensation and Reimbursement.................................36
SECTION 608. Disqualification; Conflicting Interests........................37
SECTION 609. Corporate Trustee Required; Eligibility........................37
SECTION 610. Resignation and Removal; Appointment of Successor..............37
SECTION 611. Acceptance of Appointment by Successor.........................38
SECTION 612. Merger, Conversion, Consolidation or Succession to Business....39
SECTION 613. Preferential Collection of Claims Against Company..............39
SECTION 614. Appointment of Authenticating Agent............................39
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................41
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......41
SECTION 702. Preservation of Information; Communications to Holders.........41
SECTION 703. Reports by Trustee.............................................42
SECTION 704. Reports by Company.............................................42
ii
<PAGE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.........................42
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...........42
SECTION 802. Successor Substituted..........................................43
SECTION 803. Subsidiary Guarantors May Consolidate, Etc., Only
on Certain Terms.............................................43
SECTION 804. Successor Substituted..........................................43
SECTION 805. Release of Subsidiary Guarantors...............................44
ARTICLE NINE
SUPPLEMENTAL INDENTURES......................................................44
SECTION 901. Supplemental Indentures without Consent of Holders.............44
SECTION 902. Supplemental Indentures with Consent of Holders................45
SECTION 903. Execution of Supplemental Indentures...........................46
SECTION 904. Effect of Supplemental Indentures..............................46
SECTION 905. Conformity with Trust Indenture Act............................47
SECTION 906. Reference in Securities to Supplemental Indentures.............47
ARTICLE TEN
COVENANTS....................................................................47
SECTION 1001. Payment of Principal, Premium and Interest....................47
SECTION 1002. Corporate Existence and Maintenance of Office or Agency......47
SECTION 1003. Money for Securities Payments to Be Held in Trust. ...........48
SECTION 1004. Additional Amounts............................................49
SECTION 1005. Purchase of Securities by Company or Subsidiary...............50
SECTION 1006. Limitation on Liens...........................................50
SECTION 1007. Statement by Officer as to Default............................51
SECTION 1008. Waiver of Certain Covenants...................................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.....................................................52
SECTION 1101. Applicability of Article......................................52
SECTION 1102. Election to Redeem; Notice to Trustee.........................52
SECTION 1103. Selection of Securities to Be Redeemed........................52
SECTION 1104. Notice of Redemption..........................................52
SECTION 1105. Deposit of Redemption Price...................................53
SECTION 1106. Securities Payable on Redemption Date.........................53
SECTION 1107. Securities Redeemed in Part...................................54
ARTICLE TWELVE
SINKING FUNDS................................................................54
SECTION 1201. Applicability of Article......................................54
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........54
SECTION 1203. Redemption of Securities for Sinking Fund.....................55
iii
<PAGE>
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE...........................................55
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance..55
SECTION 1302. Defeasance and Discharge......................................55
SECTION 1303. Covenant Defeasance...........................................55
SECTION 1304. Conditions to Defeasance or Covenant Defeasance...............56
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.....................57
SECTION 1306. Reinstatement.................................................58
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF BEARER SECURITIES.....................................58
SECTION 1401. Purposes for Which Meetings May Be Called.....................58
SECTION 1402. Call, Notice and Place of Meetings............................58
SECTION 1403. Persons Entitled to Vote at Meetings..........................58
SECTION 1404. Quorum; Action................................................59
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................59
SECTION 1406. Counting Votes and Recording Action of Meetings...............60
ARTICLE FIFTEEN
GUARANTEES OF SECURITIES.....................................................60
SECTION 1501. Unconditional Guarantees. ....................................60
SECTION 1502. Limitation of Subsidiary Guarantors' Liability................62
SECTION 1503. Contribution..................................................62
SECTION 1504. Execution and Delivery of Subsidiary Guarantees...............62
SECTION 1505. Addition of Secondary Subsidiary Guarantors...................63
SECTION 1506. Release of Subsidiary Guarantee...............................63
SECTION 1507. Consent to Jurisdiction and Service of Process................63
SECTION 1508. Waiver of Immunity............................................64
SECTION 1509. Judgment Currency.............................................64
SECTION 1510. Right of Subrogation..........................................64
iv
<PAGE>
INDENTURE, dated as of September 26, 1996, among NGC Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 13430 Northwest
Freeway, Suite 1200, Houston, Texas 77040, the Subsidiary Guarantors (as defined
hereinafter) and The First National Bank of Chicago, a national banking
association, 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
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
Each of the Subsidiary Guarantors (as defined hereinafter) initially a
party hereto is a direct or indirect wholly-owned subsidiary of the Company.
Such Subsidiary Guarantors will derive direct and indirect benefit from the
issuance of the Securities; accordingly, such Subsidiary Guarantors have
authorized the guarantee of the Company's obligations under this Indenture and
the Securities, and to provide therefor such Subsidiary Guarantors have duly
authorized the execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company and each of the Subsidiary Guarantors initially a party hereto, 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 (together with the related Subsidiary Guarantees) 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 (together with the related
Subsidiary Guarantees), 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 in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles"
1
<PAGE>
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of this Indenture; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision, and the words "date of
this Indenture" and "date hereof" and other words of similar import
refer to the effective date of the original execution and delivery of
this Indenture, VIZ. September 26, 1996.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the fair value of the assets of such Subsidiary Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"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.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global form.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of that
board, and, with respect to any Subsidiary of the Company, either the board of
directors of such Subsidiary or any duly authorized committee of that board or,
if the Subsidiary is not a corporation, the group of Persons having authority to
manage the Subsidiary or any duly authorized committee of that group.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Subsidiary of the
Company to have been duly adopted by the Board of Directors of the Company or
such Subsidiary, as the case may be, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
Securities in global form for purposes of Sections 201 and 203 and Article Three
of this Indenture.
2
<PAGE>
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Certification Date" means with respect to Securities of any series (i),
if Bearer Securities of such series are not to be initially represented by a
temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B), if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Clearinghouse" means Natural Gas Clearinghouse, a general partnership
organized under the laws of the State of Colorado.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"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 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 principal office of the Trustee in
Chicago, Illinois, at which at any particular time its corporate trust business
shall be administered.
The term "corporation" means a corporation, association, limited
liability company, joint-stock company, business trust or similar organization.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECI" means Electric Cleaaringhouse, Inc., a Texas corporation.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
3
<PAGE>
"Funded Indebtedness" means all outstanding indebtedness (including
indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the option
of any obligor thereon to a date, more than one year after the date on which
such indebtedness is originally incurred.
"Holder," when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"HUB Services" means HUB Services, Inc., a Delaware corporation.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
The term "interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issue Date" means the Date on which Securities are originally issued
under this Indenture.
"Kansas Gas" means Kansas Gas Supply Corporation, a Delaware
corporation.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (a) total current liabilities (excluding current maturities of
long-term debt and preferred stock); (b) all reserves for depreciation and other
asset valuation reserves but excluding reserves for deferred federal and state
income taxes; (c) all intangible assets such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense carried as an asset;
and (d) all appropriate adjustments on account of minority interests of other
Persons holding common stock in any Subsidiary.
"NGC Anadarko" means NGC Anadarko Gathering Systems, Inc., a Texas
corporation.
"NGC Canada" means NGC Canada, Inc., an Alberta corporation.
"NGC Futures" means NGC Futures, Inc., a Texas corporation.
"NGC Storage" means NGC Storage, Inc., a Delaware corporation.
"NGC UK" means NGC UK Limited, a United Kingdom limited corporation.
"NOTTI" means NGC Oil Trading and Transportation, Inc. a Texas
corporation.
4
<PAGE>
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company or a Subsidiary Guarantor, as the case
may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which is issued at
a price lower than the principal amount payable upon the Stated Maturity thereof
and which provides for an amount less than the principal amount thereof to be
due and payable upon redemption thereof or upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (a) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (b) the principal amount of a Security denominated in a
foreign currency or currencies, including composite currencies, shall be the
Dollar equivalent, determined on the date of original issuance of such Security
in the manner provided as contemplated by Section 301, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
on the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (c) Securities owned by the
Company, any Subsidiary Guarantor, or any other obligor upon the Securities or
any Affiliate of the Company, any Subsidiary Guarantor, or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, any
Subsidiary Guarantor, or any other obligor upon the Securities or any Affiliate
of the Company, any Subsidiary Guarantor, or of such other obligor.
5
<PAGE>
"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, partnership, joint venture,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places as specified in accordance with Section 301
where, subject to the provisions of Section 1002, the principal of and any
premium and interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Primary Subsidiary Guarantors" means Clearinghouse, Warren Petroleum,
Warren NGL, Warren Liquids and NOTTI, and each of their respective successors
and assigns.
"Principal Property" means any natural gas, natural gas liquids or crude
oil pipeline, distribution system, gathering system, storage facility or
processing plant, except any such property that in the good faith opinion of the
Board of Directors of the Company is not of material importance to the business
conducted by the Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary of the Company which owns a
Principal Property.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer in the corporate trust department (or any successor group) of the
Trustee, including any Vice President, any Trust Officer, or any other officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Corporate Trust Office because of his
or her knowledge of and familiarity with the particular subject.
"Secondary Subsidiary Guarantors" means (i) Warren Energy Resources, NGC
Futures, NGC UK, NGC Canada, Warren Marketing, Warren Pipeline, WIGS, Kansas
Gas, WPC, ECI and WTLPS and (ii)any Subsidiary (direct or indirect) of the
Company that delivers a Subsidiary Guarantee pursuant to Section 1505 hereof,
and in each case their respective successors and assigns.
6
<PAGE>
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, or (ii) any partnership or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned. For the purposes of this
definition, "securities having ordinary voting power" means securities or other
equity interests which ordinarily have voting power for the election of
directors, or persons having management power with respect to the Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Subsidiary Guarantee" means a guarantee made by a Subsidiary of the
Company pursuant to Section 1501 hereof.
"Subsidiary Guarantor" means (i) each Primary Subsidiary Guarantor, and
(ii) each Secondary Subsidiary Guarantor, if any, but excluding any Subsidiary
of the Company released from its Subsidiary Guarantee pursuant to Section 805 or
Section 1505 (unless such Subsidiary becomes a Secondary Subsidiary Guarantor
pursuant to Section 1505 subsequent to such release).
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 905; PROVIDED, HOWEVER, that in 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.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section 1304.
7
<PAGE>
"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."
"Warren Energy Resources" means Warren Energy Resources, Limited
Partnership, a Delaware limited partnership.
"Warren Liquids" means Warren Gas Liquids, Inc., a Delaware corporation.
"Warren Marketing " means Warren Gas Marketing, Inc., a Delaware
corporation.
"Warren NGL" means Warren NGL, Inc., a Delaware corporation.
"Warren Petroleum" means Warren Petroleum Company, Limited Partnership,
a Delaware limited partnership.
"Warren Pipeline" means Warren NGL Pipeline Company, a Delaware
corporation.
"WIGS" means Warren Intrastate Gas Supply, Inc., a Delaware corporation.
"WPC" means WPC LP, Inc., a Delaware corporation.
"WTLPS" means WTLPS, Inc., a Delaware corporation.
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 and the Subsidiary
Guarantors 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 of a Subsidiary Guarantor, 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.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
8
<PAGE>
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.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fourteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Registered Securities of any series entitled to give
9
<PAGE>
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent, waiver or other Act as to his
Security or portion of his Security; PROVIDED, HOWEVER, that such revocation
shall be effective only if the Trustee receives notice of such revocation before
the date the Act becomes effective.
(g) Without limiting the foregoing, a Holder entitled hereunder to give
or 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 different 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 Department, or
10
<PAGE>
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, to the
attention of its Treasurer, or at any other address previously furnished
in writing to the Trustee by the Company; and in the case of Bearer
Securities, at the address of an office or agency located outside the
United States maintained by the Company in accordance with Section 1002.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event,
at the address of such Holder as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such publication
to be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
11
<PAGE>
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and govern this Indenture or any other provision of this Indenture
that is required to be in this Indenture by the Trust Indenture Act, such
required provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that 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 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture, the Subsidiary Guarantees and the Securities and coupons
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to principles of conflicts of laws.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons other than a provision in the Securities of any series 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, PROVIDED
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
12
<PAGE>
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including temporary or permanent global form) as shall be established
by or pursuant to a Board Resolution of the Company 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 (including the notations thereon relating to the Subsidiary Guarantees
contemplated by Section 205), 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 law, or with the rules of any securities exchange or to
conform to general usage, all as may, consistently herewith, be determined by
the officers executing such Securities or coupons, as evidenced by their
execution of the Securities or coupons. If temporary Securities of any series
are issued in global form as permitted by Section 304, the form thereof shall be
established as provided in the preceding sentence. A copy of the Board
Resolution of the Company establishing the forms of Securities or coupons of any
series (or any such temporary global Security) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
notations of Subsidiary Guarantees, as the case may be, as evidenced by their
execution of such Securities or coupons or notations of Subsidiary Guarantees,
as the case may be.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By ___________________________
AUTHORIZED OFFICER."
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified 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 Security in permanent global form 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
13
<PAGE>
the Company with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 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 Security in permanent global form shall be made to
the Person or Persons specified therein.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Book-Entry Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depository to
a nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository) may be registered except in such limited
circumstances."
SECTION 205. FORM OF NOTATION RELATING TO SUBSIDIARY GUARANTIES.
The form of notation to be set forth on each Security relating to the
Subsidiary Guaranties shall be in substantially the following form:
14
<PAGE>
SUBSIDIARY GUARANTEE
To the extent and subject to the limitations set forth in the
Indenture, the Subsidiary Guarantors (as defined in the Indenture
referred to in the Security upon which this notation is endorsed and
each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor or additional Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a)
the due and punctual payment of the principal (and premium, if any) of
and interest on the Securities and related coupons, (b) the due and
punctual payment of all other amounts due and payable under the
Indenture and the Securities by the Company, and (c) the due and
punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in
the Indenture. Capitalized terms used herein shall have the meanings
assigned to them in the Indenture unless otherwise indicated.
The obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under the Indenture, result in the obligations
of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under
applicable federal, state or foreign law. Each Subsidiary Guarantor that
makes a payment or distribution under a Subsidiary Guarantee shall be
entitled to a contribution from each other Subsidiary Guarantor in a pro
rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor.
Under certain limited circumstances, the Subsidiary Guarantors
may be released from the Subsidiary Guarantee upon the terms and subject
to the conditions provided in the Indenture.
The obligations of the Subsidiary Guarantors to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guaranties and
the Indenture are expressly set forth in the Indenture, including
Article Fifteen thereof, and reference is hereby made to the Indenture
for the precise terms of the Subsidiary Guarantees.
NATURAL GAS CLEARINGHOUSE
By: NGC Corporation, its general partner
WARREN NGL, INC.
WARREN ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Warren Energy, Inc., its general partner
WARREN GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
NGC UK LIMITED
NGC CANADA, INC.
NGC FUTURES, INC.
WARREN GAS MARKETING, INC.
WARREN NGL PIPELINE COMPANY
WARREN INTRASTATE GAS SUPPLY, INC.
KANSAS GAS SUPPLY CORPORATION
WARREN PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Warren Petroleum GP, Inc., its general partner
WPC LP, INC.
WTLPS, INC.
Electric Clearinghouse, Inc.
By _____________________________
15
<PAGE>
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, and each such series
shall rank equally and PARI PASSU with each other series. There shall be
established in or pursuant to a Board Resolution of the Company 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 all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities
of the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form, as Book Entry Securities, or otherwise, with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305;
(4) the Person to whom any interest on any Registered 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, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if
any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable,
the Regular Record Date for any interest payable on any Registered
Securities on any Interest Payment Date and whether, and under what
circumstances, additional amounts with respect to such Securities shall
be payable as set forth in Section 1004;
16
<PAGE>
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and notices and demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(8) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series may be so redeemed;
(9) the obligation, if any, of the Company to redeem, purchase,
or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States and the manner of determining the equivalent thereof
in the currency of the United States for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of and any premium or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the 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;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with respect
to such Book-Entry Security or Securities and (b) the circumstances
under which any such Book-Entry Security may be exchanged for Securities
registered in the name of, and any transfer of such Book-Entry Security
may be registered to, a Person other than such Depository or its
nominee, if other than as set forth in Section 305;
(16) if either or both of the provisions of Section 1302 or 1303
are applicable to the Securities of such series and any additional means
of discharge pursuant to Section 1302 or 1303 and any additional
conditions to the provisions of Section 1302 or 1303;
17
<PAGE>
(17) any other Events of Default or covenants with respect to
the Securities of such series; and
(18) 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)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
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.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or its Chief Financial
Officer, 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. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company and having the
notation of Subsidiary Guarantees thereon executed by the Subsidiary Guarantors,
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; PROVIDED,
HOWEVER, that, unless otherwise provided with respect to such series, in
connection with its original issuance, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) (the "restricted period") no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED, FURTHER,
that, unless otherwise provided with respect to such series, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit A to this Indenture, dated no earlier than the
Certification Date. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance during the
restricted period of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
18
<PAGE>
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating Securities, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the forms of such Securities and coupons established by
or pursuant to a Board Resolution of the Company as contemplated by
Section 201 have been established in conformity with the provisions of
this Indenture, including its requirements for notations thereon
relating to the Subsidiary Guarantees;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution of the Company as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and the Subsidiary Guarantors enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution of the Company 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 two preceding
paragraphs, 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 paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon issuance of the first Security
of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its authentication;
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement
19
<PAGE>
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security 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 or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons, and having the notations of Subsidiary Guarantees thereon and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and notations of Subsidiary Guarantees may
determine, as evidenced by their execution of such Securities and notations of
Subsidiary Guarantees. In the case of any series issuable as Bearer Securities,
such temporary Securities may be in global form. A temporary Bearer Security
shall be delivered only in compliance with the conditions set forth in Section
303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations and
having the notations of Subsidiary Guarantees thereon; PROVIDED, HOWEVER, that
no definitive Bearer Security shall be issued in exchange for a temporary
Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series (including the notations thereon
relating to the Subsidiary Guarantees contemplated by Section 205) in aggregate
principal amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date such temporary
global Security shall be surrendered by the Common Depositary to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities of that series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL S.A. as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B to this Indenture. The definitive Securities to be
delivered in exchange for
20
<PAGE>
any such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and if any
combination thereof is so specified, as requested by the beneficial owner
thereof; PROVIDED, HOWEVER, that no definitive Bearer Security or permanent
global Security shall be delivered in exchange for a temporary Bearer Security
except in compliance with the conditions set forth in Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent and after the
Exchange Date, the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
following such beneficial owner's delivery to Euro-clear or CEDEL S.A., as the
case may be, of a certificate in the form set forth in Exhibit A to this
Indenture dated no earlier than the Certification Date. Unless otherwise
specified in such temporary global Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series shall be
payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery
by Euro- clear and CEDEL S.A. to the Trustee of a certificate or certificates in
the form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euro-clear or CEDEL
S.A., as the case may be, a certificate in the form set forth in Exhibit A to
this Indenture. Any interest so received by Euro-clear and CEDEL S.A. and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and 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 each series of Registered Securities and
the registration of transfers of such Registered Securities. The Company shall
serve initially as "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated
21
<PAGE>
transferee or transferees, one or more new Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, each such Security having a notation of Subsidiary Guarantees
thereon.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any 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 (including the notations
thereon relating to the Subsidiary Guaranties contemplated by Section 205) which
the Holder making the exchange is entitled to receive. Unless otherwise provided
with respect to any series of Securities, Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only to
the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
(including the notations thereon relating to the Subsidiary Guarantees
contemplated by Section 205) which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company
(including the notations thereon relating to the Subsidiary Guaranties
contemplated by Section 205). On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 102 or be accompanied by an Opinion of Counsel) by
the Common Depositary or such other depositary or Common
22
<PAGE>
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations (including the
notations thereon relating to the Subsidiary Guarantees contemplated by Section
205) and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series is to be redeemed and ending on the relevant Redemption Date; and
PROVIDED, FURTHER, that no Bearer Security delivered in exchange for a portion
of a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such permanent global Security shall be returned by the Trustee to the Common
Depositary or such other depositary or Common Depositary referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with
provisions of this Indenture.
All Securities and the Subsidiary Guarantees noted thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Subsidiary Guarantors, respectively,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption, or if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
23
<PAGE>
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any series
may be registered to, any Person other than the Depository for such Security or
its nominee only if (i) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Book-Entry Security or if
at any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall be
so exchangeable and the transfer thereof so registrable or (iii) there shall
have occurred and be continuing an Event of Default, with respect to the
Securities of such series. Upon the occurrence in respect of any Book-Entry
Security of any series of any one or more of the conditions specified in clause
(i), (ii) or (iii) of the preceding sentence or such other conditions as may be
specified, such Book-Entry Security may be exchanged for Securities registered
in the names of, and the transfer of such Book-Entry Security may be registered
to, such Persons (including Persons other than the Depository with respect to
such series and its nominees) as such Depository shall direct. Notwithstanding
any other provision of this Indenture, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any
Book-Entry Security shall also be a Book-Entry Security and shall bear the
legend specified in Section 204 except for any Security authenticated and
delivered in exchange for, or upon registration of transfer of, a Book-Entry
Security pursuant to the preceding sentence.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND COUPONS.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto 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 (including the notations thereon relating to the
Subsidiary Guarantees contemplated by Section 205) and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company
and the respective
24
<PAGE>
Subsidiary Guarantors, whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and any such new Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise so provided, at the option of the Company,
payment of interest on any Registered Security may be made by check mailed on or
before the due date to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at the address of
such Holder as it appears in the Security Register, not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper,
PROVIDED such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any
25
<PAGE>
securities exchange on which such Securities may be then 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 and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Subsidiary Guarantors, the
Trustee nor any agent of the Company, the Subsidiary Guarantors or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered shall
be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 306. All Bearer Securities
and unmatured coupons held by the Trustee pending such cancellation or
reissuance shall be deemed to be delivered for all purposes of this Indenture
and the Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for 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
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities and coupons held
by the Trustee shall be disposed of in accordance with its customary practice.
26
<PAGE>
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
with respect to Securities of a Series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for, and any right to receive additional amounts, as provided in Section 1004),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
Securities of a Series, when
(1) either
(A) all Securities of such Series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (ii)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all such Securities and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
any 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
27
<PAGE>
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Company under Sections 306, 610(e) and 701 and the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited.
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, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series of Securities or it is specifically deleted
or modified in or pursuant to the terms of such series or in the form of
Security of such series:
(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; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) any Subsidiary Guarantee, other than a Subsidiary Guarantee
of a Secondary Subsidiary Guarantor that is not required to be created
by the terms of Section 1505(a) hereof and is created solely pursuant to
Section 1505(b) hereof, shall for any reason cease to be, or be asserted
by the Company or any Subsidiary Guarantor, as applicable, not to be, in
full force and effect, enforceable in accordance with its terms (except
pursuant to the release of any such Subsidiary Guarantee in accordance
with this Indenture); or
(5) default in the performance, or breach, of any covenant or
warranty of the Company or any Subsidiary Guarantor in this Indenture
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and
28
<PAGE>
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Subsidiary Guarantor 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 or any
Subsidiary Guarantor as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary Guarantor
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Subsidiary Guarantor or of any
substantial part of the property of the Company or any Subsidiary
Guarantor, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(7) the commencement by the Company or any Subsidiary Guarantor
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 or any Subsidiary Guarantor in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or the commencement of
any bankruptcy or insolvency case or proceeding against the Company or
any Subsidiary Guarantor, or the filing by the Company or any Subsidiary
Guarantor of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or state law, or the consent by the
Company or any Subsidiary Guarantor to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Subsidiary Guarantor or of any substantial part of the
property of the Company or any Subsidiary Guarantor, or the making by
the Company or any Subsidiary Guarantor of an assignment for the benefit
of creditors, or the admission by the Company or any Subsidiary
Guarantor in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or any
Subsidiary Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
29
<PAGE>
(1) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on, and any additional amounts
payable as set forth in Section 1004 on, all Securities of that
series and any coupons appertaining thereto,
(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, and any additional amounts
payable as set forth in Section 1004 on, at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any 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 and coupons, the whole amount then due and payable on
such Securities and coupons 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 (or, in the case of Original Issue
Discount Securities, the Securities' yield to maturity) and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, any Subsidiary Guarantor or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, any Subsidiary
Guarantor or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
30
<PAGE>
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or the
Subsidiary Guarantors (or any other obligor upon the Securities), or the
property or the creditors of the Company or any of the Subsidiary Guarantors,
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.
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 Subsidiary Guarantees 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 Holders,
vote for the election of a trustee of 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 OR
COUPONS.
All rights of action and claims under this Indenture or the Securities
or Subsidiary Guarantees or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and coupons
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal and any premium and interest, respectively.
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
31
<PAGE>
In any case in which Securities are Outstanding that are denominated in
more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided with
respect to any series of Securities, the Trustee shall calculate the amount of
such payments as follows: (i) as of the day the Trustee collects an amount under
this Article, the Trustee shall, as to each Holder of a Security to whom an
amount is due and payable under this Section that is denominated in a foreign
currency, determine that amount in Dollars that would be obtained for the amount
owing such Holder, using the rate of exchange at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York Dollars
with such amount owing; (ii) calculate the sum of all Dollar amounts determined
under (i) and add thereto any amounts due and payable in Dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due and
payable in Dollars, as the case may be, as a numerator, and the sum calculated
in (ii) as a denominator, calculate as to each Holder of a Security to whom an
amount is owed under this Section the fraction of the amount collected under
this Article payable to such Holder. Any expenses incurred by the Trustee in
actually converting amounts owing Holders of Securities denominated in a
currency other than that in which any amount is collected under this Article
shall be likewise (in accordance with this paragraph) borne ratably by all
Holders of Securities to whom amounts are payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in the City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under this Section caused
by a change in exchange rates between the time the amount of a judgment against
the Company is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee 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;
32
<PAGE>
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections 305
and 307) any interest on such Security or payment of such coupon on the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon 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
Subsidiary Guarantors, the Trustee and the Holders of Securities and coupons
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 or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon 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 of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
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;
33
<PAGE>
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) the Trustee shall not be obligated to take any action unduly
prejudicial to Holders not joining in such direction or involving the
Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to the Securities of
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 which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
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 or the Subsidiary
Guarantors.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Guarantors 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 to take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the Subsidiary Guarantors (to the extent that each 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
34
<PAGE>
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 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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 of the Company shall be
sufficiently evidenced by a Board Resolution of the Company;
(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
35
<PAGE>
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the notations of
Subsidiary Guarantees thereon (except the Trustee's certificates of
authentication) and in any coupons shall be taken as the statements of the
Company or the Subsidiary Guarantors, as the case may be, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities (including the notation of Subsidiary Guarantees
thereon) or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or any Subsidiary Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 608 and 613, may otherwise deal with the
Company and the Subsidiary Guarantors 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 or any Subsidiary Guarantor.
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 and each predecessor 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 and each predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
36
<PAGE>
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (6) or (7) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
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.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. No obligor upon any Security
issued under this Indenture or a person directly or indirectly controlling,
controlled by or under common control with such obligor shall serve as Trustee
under this Indenture.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security
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
37
<PAGE>
(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 a 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 case, (i) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the 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 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 of Securities of such series and accepted appointment in the manner
required by Section 611, any Holder of a Security 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. Such court may thereupon, after such notice, if any,
as it may deem proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series 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.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, with like effect as
if originally named Trustee hereunder; 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. Any Trustee ceasing to act shall, nevertheless,
retain a prior lien upon all property or funds held or collected by such Trustee
to secure any amounts then due it pursuant to the provisions of Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each
38
<PAGE>
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 as 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 rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company or
any Subsidiary Guarantor (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company or any Subsidiary Guarantor (or any
such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may, by an instrument in writing, appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which may be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or 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.
39
<PAGE>
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. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States, any State thereof or the
District of Columbia (or, if Bearer Securities, organized and doing business
under the laws of the country in which the Bearer Securities are eligible),
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 (or, if Bearer Securities, an
authority of the country in which the Bearer Securities are eligible). If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible shall,
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 notice of resignation or upon such termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Registered Securities, if any, of the series with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, 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 been endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
40
<PAGE>
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By: _______________________________
AS AUTHENTICATING AGENT
By: ________________________________
AUTHORIZED OFFICER"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be such
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after a Regular Record Date, a
list, in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
Securities as of the immediately preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701, and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
41
<PAGE>
(b) The rights of the 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.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Subsidiary Guarantors and the Trustee that
neither the Company nor the Subsidiary Guarantors nor the Trustee nor any agent
of any 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 and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) on or before July 15 in each year following the date hereof, 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.
(b) 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 (or delisted) on any
stock exchange.
SECTION 704. REPORTS BY COMPANY.
In addition to the certificates delivered to the Trustee pursuant to
Section 1007, the Company (and the Subsidiary Guarantors, if applicable) 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 Securities Exchange Act of 1934, as amended, 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 other Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest
(including all additional amounts, if any, payable pursuant to Section
1004) on all the Securities and the performance or observance of every
other covenant of this Indenture on the part of the Company to be
performed or observed;
42
<PAGE>
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and coupons and may liquidate
and dissolve.
SECTION 803. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Subject to the terms of Section 805, no Subsidiary Guarantor shall
consolidate with or merge into any other Person (other than the Company or
another Subsidiary Guarantor) or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person (other than the Company
or another Subsidiary Guarantor), unless:
(1) the Person formed by such consolidation or into which the
Subsidiary Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Subsidiary Guarantor substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States, any State thereof or the
District of Columbia (or, in the case of a Subsidiary Guarantor
organized under the laws of a jurisdiction outside the United States, a
corporation, partnership, trust or similar business organization
organized and existing under the laws of such foreign jurisdiction) and,
except to the extent Section 805 would result in the release of the
Subsidiary Guarantee of such Subsidiary Guarantor, shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all obligations of the
Subsidiary Guarantor under the Subsidiary Guarantee;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
and
(3) the Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this article and that all conditions
precedent herein provided for relating to such transition have been
complied with.
SECTION 804. SUCCESSOR SUBSTITUTED.
Upon any consolidation of a Subsidiary Guarantor with, or merger of a
Subsidiary Guarantor into, any other Person (other than the Company or another
Subsidiary Guarantor) or any conveyance, transfer or lease of the properties and
assets of a Subsidiary Guarantor substantially as an entirety to any other
Person (other than
43
<PAGE>
the Company or another Subsidiary Guarantor) in accordance with Section 803, and
except to the extent Section 805 would result in the release of the Subsidiary
Guarantee of such Subsidiary Guarantor, the successor Person formed by such
consolidation or into which the Subsidiary Guarantor 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, a Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as a
Subsidiary Guarantor 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 its Subsidiary Guarantee and may liquidate and dissolve.
SECTION 805. RELEASE OF SUBSIDIARY GUARANTORS.
Notwithstanding anything to the contrary in this Article Eight, in the
event a Subsidiary Guarantor consolidates with or merges into, or conveys,
transfers or leases its properties and assets substantially as an entirety to
any other Person (other than the Company or another Subsidiary of the Company)
pursuant to a transaction that is otherwise in compliance with the terms of this
Indenture, such Subsidiary Guarantor shall be deemed to be released from its
Subsidiary Guarantee and all other obligations and covenants under this
Indenture to the extent that all guarantees and obligations of such Subsidiary
Guarantor with respect to Funded Indebtedness of the Company (other than the
Securities) shall also terminate upon the consummation of such transaction. The
Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a Company Request accompanied by an Officers' Certificate certifying
that the transaction was completed by the Company in accordance with the
provisions of this Indenture, and following the receipt by the Trustee of any
such notice, the Company and the Trustee shall cause this Indenture to be
amended as provided in Section 901 hereof; PROVIDED, HOWEVER, that the failure
to so amend this Indenture shall not affect the validity of the termination of
the Subsidiary Guarantee of such Subsidiary Guarantor.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Subsidiary Guarantors, 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
or a Subsidiary Guarantor and the assumption by any such successor of
the covenants of the Company or the Subsidiary Guarantor herein and in
the Securities or in the Subsidiary Guarantee pursuant to Article Eight;
or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with the Trustee
or otherwise secure any series of the Securities or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all
or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
44
<PAGE>
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, PROVIDED that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to 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 secure the Securities pursuant to the requirements of
Section 1006 or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED, that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(10) to add any Person as a Secondary Subsidiary Guarantor as
provided in Section 1505 hereof, or to limit the ability of a Secondary
Subsidiary Guarantor to be released from its obligations under the
Indenture or the Subsidiary Guarantee of such Secondary Subsidiary
Guarantor pursuant to Section 1506 hereof; or
(11) to release a Secondary Subsidiary Guarantor from its
Subsidiary Guarantee pursuant to Section 1506 hereof; or
(12) to release a Subsidiary Guarantor from its Subsidiary
Guarantee pursuant to Section 805 hereof.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by Board Resolution, the Subsidiary Guarantors, when authorized
by Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
45
<PAGE>
(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 change the Redemption Date
thereof, or change any obligation of the Company to pay additional
amounts pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any
Security or any premium or interest thereon is payable, or change any
right of redemption, purchase or repayment by the Company at the option
of the Holder, 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 reduce the requirements of Section 1404 for
quorum or voting, or
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 1002,
or
(4) 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 of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1008 or the deletion of this provision, in
accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes;
46
<PAGE>
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company, with the notations of Subsidiary
Guarantees thereon executed by the Subsidiary Guarantors, and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series
and of like tenor.
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, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. CORPORATE EXISTENCE AND MAINTENANCE OF OFFICE OR AGENCY.
Except as expressly permitted by this Indenture, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence of the Company and each of the Subsidiary
Guarantors.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series, the related Subsidiary Guarantees and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company and the Subsidiary Guarantors in respect of the Securities of
that series, the Subsidiary Guarantees thereof and this Indenture may be served
and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be
47
<PAGE>
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1004);
PROVIDED, HOWEVER, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series, the related Subsidiary Guarantees and
this Indenture may be served. The Company will give prompt written notice to the
Trustee and prompt notices to the Holders as provided in Section 106 of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at any Paying Agent for such series
located outside the United States, and the Company hereby appoints the same as
its agents to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where 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 accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any other change in
the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any coupons appertaining thereto, it
will, on or before each due date of the principal of and 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 or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or prior to each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such
48
<PAGE>
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Company or 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) 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, and 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Security or any coupon appertaining thereto shall (unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law) thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, 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.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the
49
<PAGE>
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 1005. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and will
not permit any of its Subsidiaries to, purchase any Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Securities of that
series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
SECTION 1006. LIMITATION ON LIENS.
(a) The Company will not, nor will it permit any Principal Subsidiary
to, issue, assume or guarantee any indebtedness for money borrowed (hereinafter
in this Article Ten referred to as "Debt"), if such Debt is secured by a
mortgage, pledge, security interest or lien (any mortgage, pledge, security
interest or lien being hereinafter in this Article Ten referred to as a
"mortgage" or "mortgages") upon any Principal Property of the Company or any
Principal Subsidiary or upon any shares of stock or other equity interest or
indebtedness of any Principal Subsidiary (whether such Principal Property,
shares of stock or other equity interest or indebtedness is now owned or
hereafter acquired), without in any such case effectively providing,
concurrently with the issuance, assumption or guarantee of such Debt, that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Principal Subsidiary
ranking equally with the Securities then outstanding and existing or thereafter
created) shall be secured equally and ratably with (or prior to) such Debt;
PROVIDED, HOWEVER, that the foregoing restriction shall not apply to:
(1) mortgages on property acquired, constructed or improved by
the Company or any Principal Subsidiary after the date of this Indenture
which are created or assumed contemporaneously with, or within 180 days
after, such acquisition (or in the case of property constructed or
improved, after the completion and commencement of commercial operation
of such property, whichever is later) to secure or provide for the
payment of any part of the purchase price of such property or the cost
of such construction or improvement, it being understood that if a
commitment for such a financing is obtained prior to or within such
180-day period, the applicable mortgage shall be deemed to be included
in this clause (1) whether or not such mortgage is created within such
180-day period; PROVIDED that in the case of any such construction or
improvement the mortgage shall not apply to any property theretofore
owned by the Company or any Principal Subsidiary, other than any
theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(2) mortgages on any property existing at the time of acquisition
thereof (including mortgages on any property acquired from a Person
which is consolidated with or merged with or into the Company or a
Subsidiary of the Company) and mortgages outstanding at the time any
Person becomes a Subsidiary of the Company that are not incurred in
connection with such entity becoming a Subsidiary of the Company;
50
<PAGE>
(3) mortgages in favor of the Company or any Principal
Subsidiary;
(4) mortgages in favor of the United States, any State, any
foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of constructing or
improving the property subject to such mortgages, including, without
limitation, mortgages to secure Debt of the pollution control or
industrial revenue bond type;
(5) mortgages on any Principal Property held, leased or used by
the Company or any Principal Subsidiary in connection with the
exploration for, development of, or production of (but not the
gathering, processing, transportation or marketing of) natural gas, oil
or other minerals; and
(6) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in any of the foregoing clauses (1), (2), (3), (4)
and (5); PROVIDED, HOWEVER, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the property
which secured the mortgage so extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the provisions of subsection (a) of this Section
1006, the Company and any Principal Subsidiary may issue, assume or guarantee
secured Debt, which would otherwise be subject to the foregoing restrictions, in
an aggregate amount which, together with all other such Debt does not exceed 15%
of Net Tangible Assets, as shown on a consolidated balance sheet, as of a date
not more than 90 days prior to the proposed transaction, prepared by the Company
in accordance with generally accepted accounting principles.
SECTION 1007. STATEMENT BY OFFICER AS TO DEFAULT.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 1007, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture. Such certificate
shall comply with Section 314(a)(4) of the Trust Indenture Act.
(b) The Company and the Subsidiary Guarantors shall, so long as any of
the Securities are outstanding, deliver to the Trustee forthwith upon any
Officer becoming aware of any Event of Default or event which, after notice or
lapse of time or both, would become an Event of Default, an Officers'
Certificate specifying such Event of Default or event and what action the
Company or any Subsidiary Guarantor proposes to take with respect thereto.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005, 1006 or Article Fifteen with
respect to the Securities of any series if before the time for such compliance
the Holders of 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.
51
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In the case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series of a specified tenor are to be redeemed)
the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series 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 and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
52
<PAGE>
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed, and that on and after the Redemption Date,
upon surrender of the Securities, new Securities of such series in
principal amount equal to the unredeemed part thereof will be issued,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and PROVIDED, FURTHER, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or
53
<PAGE>
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
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 or, in the case of Original Issue Discount Securities, the
Securities' yield to maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
54
<PAGE>
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 45 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1302 or Section 1303 applied to the Outstanding Securities
of any series upon compliance with the conditions set forth below in this
Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company and the Subsidiary Guarantors shall be
deemed to have been discharged from their respective obligations with respect to
the Outstanding Securities of any series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under the Securities of such
series and this Indenture insofar as the Securities of such series are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on the Securities of
such series when such payments are due, (B) the Company's and the Subsidiary
Guarantors' respective obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801,
1005 and 1006, (ii) the Subsidiary Guarantors shall be released from their
obligations with respect to the Securities of such series under Section 803, and
(iii) the occurrence of an event specified in Sections 501(3) or (5) shall not
be deemed to be an Event of Default on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), but the
remainder of this Indenture and such Securities shall be unaffected thereby. For
this purpose, such covenant defeasance means that the Company may omit to comply
55
<PAGE>
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or clause whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or clause or by reason of
any reference in any such Section or clause to any other provision herein or in
any such Section or clause 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 application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (and premium, if any) and each installment of interest on
the Securities and any coupons pertaining thereto on the Stated Maturity
of such principal (and premium, if any) or installment of interest in
accordance with the terms of this Indenture and of the Securities of
such series. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable United States
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
United States Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize gain or loss for United States Federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject to
United States Federal income tax on the same
56
<PAGE>
amount, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, insofar as subsections 501(6) and (7) are
concerned, at any time during the period ending on the 121st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act with respect to any securities of the Company.
(6) 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.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
(8) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such Act or exempt from regulation
thereunder.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Securities of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities of such series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 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 the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
57
<PAGE>
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and the Subsidiary Guarantors' respective
obligations under this Indenture and the Securities (and the related Subsidiary
Guarantees) of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; PROVIDED, HOWEVER, that if the Company or any Subsidiary Guarantor
makes any payment of principal of or any premium or interest on any Security
following the reinstatement of its obligations, the Company or the Subsidiary
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of the Securities of such series to receive such payment from the money held by
the Trustee or the Paying Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF BEARER SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Bearer
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London or such other location as the Trustee shall determine. Notice
of every meeting of Holders of Bearer Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 120 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Bearer Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London or such
other location as the Trustee shall determine for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Bearer Securities a
Person shall (a) be a Holder of one or more Bearer Securities or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more Bearer
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Bearer Securities shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
58
<PAGE>
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Bearer Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the aggregate principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting duly
reconvened at which a quorum is present as aforesaid) may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Bearer Securities of that series; PROVIDED, HOWEVER, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in aggregate principal amount of the Outstanding Bearer
Securities of a series may be adopted at a meeting (or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid) by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Bearer Securities of that series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Bearer
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Bearer Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Bearer Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in Section
104 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Bearer Securities as provided in Section 1402(b), in
which case the Company or the Holders of Bearer Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented at the
meeting.
59
<PAGE>
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Bearer Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Bearer Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Bearer Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Bearer Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
GUARANTEES OF SECURITIES
SECTION 1501. UNCONDITIONAL GUARANTEES.
(a) For value received, the Subsidiary Guarantors, jointly and
severally, hereby fully, unconditionally and absolutely guarantee to the Holders
and to the Trustee the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and related coupons and all
other amounts due and payable under this Indenture and the Securities by the
Company when and as such principal, premium, if any, and interest and coupons
shall become due and payable, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise, according to the terms of the
Securities and this Indenture.
(b) Failing payment when due of any amount guaranteed pursuant to the
Subsidiary Guarantees, for whatever reason, each Subsidiary Guarantor will be
obligated to pay the same immediately. Each Subsidiary Guarantee hereunder is
intended to be a general, unsecured, senior obligation of each Subsidiary
Guarantor and will rank PARI PASSU in right of payment with all indebtedness of
each such Subsidiary Guarantor that is not, by its terms, expressly subordinated
in right of payment to the Subsidiary Guarantee of such Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, the Subsidiary Guarantees or
this Indenture, the absence of any action to enforce the same, any waiver or
consent
60
<PAGE>
by any Holder of the Securities with respect to any provisions hereof or
thereof, any release of any other Subsidiary Guarantor, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby
agrees that in the event of a default in payment of the principal of, or
premium, if any, or interest on the Securities, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise, legal
proceedings may be instituted by the Trustee on behalf of the Holders or,
subject to the Section 507, by the Holders, on the terms and conditions set
forth in this Indenture, directly against each of the Subsidiary Guarantors to
enforce the Subsidiary Guarantees without first proceeding against the Company.
(c) The obligations of each Subsidiary Guarantor under this Article
Fifteen shall be as aforesaid full, unconditional and absolute and shall not be
impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company or any
Subsidiary Guarantor contained in the Securities or this Indenture, (ii) any
impairment, modification, release or limitation of the liability of the Company,
any Subsidiary Guarantor or any of their estates in bankruptcy, or any remedy
for the enforcement thereof, resulting from the operation of any present or
future provision of any applicable bankruptcy law, as amended, or other statute
or from the decision of any court, (iii) the assertion or exercise by the
Company, any Subsidiary Guarantor or the Trustee of any rights or remedies under
the Securities or this Indenture or their delay in or failure to assert or
exercise any such rights or remedies, (iv) the assignment or the purported
assignment of any property as security for the Securities, including all or any
part of the rights of the Company or any Subsidiary Guarantor under this
Indenture, (v) the extension of the time for payment by the Company or any
Subsidiary Guarantor of any payments or other sums or any part thereof owing or
payable under any of the terms and provisions of the Securities or this
Indenture or of the time for performance by the Company or any Subsidiary
Guarantor of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification
or amendment (whether material or otherwise) of any duty, agreement or
obligation of the Company or any Subsidiary Guarantor set forth in this
Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceeding affecting, the Company or any of the Subsidiary
Guarantors or any of their respective assets, or the disaffirmance of the
Securities, the Subsidiary Guarantees or this Indenture in any such proceeding,
(viii) the release or discharge of the Company or any Subsidiary Guarantor from
the performance or observance of any agreement, covenant, term or condition
contained in any of such instruments by operation of law, (ix) the
unenforceability of the Securities, the Subsidiary Guarantees or this Indenture
or (x) any other circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor.
(d) The Subsidiary Guarantors and the Company each hereby (i) waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of the merger, insolvency or bankruptcy of the Company or a Subsidiary
Guarantor, and all demands whatsoever, (ii) acknowledges that any agreement,
instrument or document evidencing the Subsidiary Guarantees may be transferred
and that the benefit of its obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing the Subsidiary Guarantees
without notice to them and (iii) covenants that its Subsidiary Guarantee will
not be discharged except by complete performance of the Subsidiary Guarantees.
Each Subsidiary Guarantor and the Company further agrees that if at any time all
or any part of any payment theretofore applied by any Person to any Subsidiary
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
the Company or any Subsidiary Guarantor, such Subsidiary Guarantee shall, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Subsidiary
Guarantees shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
61
<PAGE>
(e) Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Company in respect of any amounts paid by
such Subsidiary Guarantor pursuant to the provisions of this Indenture,
PROVIDED, HOWEVER, that no Subsidiary Guarantor shall be entitled to enforce or
to receive any payments arising out of, or based upon, such right of subrogation
until all of the Securities and the Subsidiary Guarantees shall have been paid
in full or discharged.
(f) A director, officer, employee or stockholder, as such, of any
Subsidiary Guarantor shall not have any liability for any obligations of such
Subsidiary Guarantor under this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation.
SECTION 1502. LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of any federal, state or
foreign law. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to Section 1503, result in the obligations
of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal, state or foreign
law.
The Holders and Warren NGL hereby agree that the liability of Warren NGL
under its full and unconditional Subsidiary Guarantee shall not at any time
exceed an amount equal to the maximum amount that Warren NGL can guarantee
without violating the terms and provisions of or causing a default under the
Indenture dated September 9, 1993 between Warren NGL (formerly known as Trident
NGL, Inc.) and Ameritrust Texas National Association, as Trustee, relating to
$65,000,000 in Senior Subordinated Notes due 2001 or the Indenture dated April
15, 1993 between Warren NGL (formerly known as Trident NGL, Inc.) and the First
National Bank of Boston, as Trustee, for $105,000,000 Subordinated Notes due
2003.
SECTION 1503. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, INTER SE, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Company's obligations with
respect to the Securities or any other Subsidiary Guarantor's obligations with
respect to its Subsidiary Guarantee.
SECTION 1504. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
To further evidence the Subsidiary Guarantees set forth in Section 1501,
each Subsidiary Guarantor hereby agrees that a notation relating to such
Subsidiary Guarantees shall be endorsed on each Security authenticated and
delivered by the Trustee in the form provided for in Section 205 and executed on
behalf of the Subsidiary Guarantors by either manual or facsimile signature by
an authorized officer of each Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its Subsidiary
Guarantee set forth in Section 1501 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation relating to
such Subsidiary Guarantee.
62
<PAGE>
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Subsidiary Guarantee
of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 1505. ADDITION OF SECONDARY SUBSIDIARY GUARANTORS.
(a) If any Subsidiary of the Company (excluding in all cases NGC
Storage, HUB Services and NGC Anadarko) guarantees or becomes primarily
obligated with respect to any Funded Indebtedness of the Company other than the
Securities at any time subsequent to the Issue Date (including, without
limitation, following any release of such Subsidiary pursuant to Section 1506
from any Subsidiary Guarantee previously provided by it under this Article
Fifteen), then the Company shall (i) cause the Securities to be equally and
ratably guaranteed by such Subsidiary, but only to the extent that the
Securities are not already guaranteed by such Subsidiary on reasonably
comparable terms and (ii) cause such Subsidiary to execute and deliver a
supplemental indenture evidencing its provision of a Subsidiary Guarantee in
accordance with clause (b) below.
(b) Any Person that was not a Subsidiary Guarantor on the Issue Date may
become a Subsidiary Guarantor, whether or not required to do so by Section
1505(a), by executing and delivering to the Trustee (i) a supplemental indenture
in form and substance satisfactory to the Trustee, which subjects such Person to
the provisions (including the representations and warranties) of this Indenture
as a Subsidiary Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles) as may be acceptable to
the Trustee in its discretion and provided that no opinion need be rendered
concerning the enforceability of the Subsidiary Guarantee.
SECTION 1506. RELEASE OF SUBSIDIARY GUARANTEE.
Notwithstanding anything to the contrary in this Article Fifteen, in the
event that any Secondary Subsidiary Guarantor shall no longer be a guarantor of
or primary obligor under any Funded Indebtedness of the Company other than the
Securities, and so long as no Event of Default shall have occurred or be
continuing, such Secondary Subsidiary Guarantor, upon the Trustee's receipt of
an Officers' Certificate to the foregoing effect, shall be deemed to be released
from all of its obligations under this Indenture and the Subsidiary Guarantee of
such Secondary Subsidiary Guarantor shall be of no further force or effect.
Following the receipt by the Trustee of any such Officers' Certificate, the
Company shall cause this Indenture to be amended as provided in Section 901
hereof; PROVIDED, HOWEVER, that the failure to so amend this Indenture shall not
affect the validity of the termination of the Subsidiary Guarantee of such
Secondary Subsidiary Guarantor.
SECTION 1507. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
Each Subsidiary Guarantor that is not organized under the laws of the
United States (or any state thereof or the District of Columbia) (each a
"Non-U.S. Guarantor") hereby appoints the principal office of CT Corporation
System in The City of New York which, on the date hereof, is located at 1633
Broadway, New York, New York 10019, as the authorized agent thereof (the
"Authorized Agent") upon whom process may be served in any action, suit or
proceeding arising out of or based on this Indenture or the Securities which may
be instituted in the Supreme Court of the State of New York or the United States
District Court for the Southern District of New York, in either case in The
Borough of Manhattan, The City of New York, by the Holder of any Security, and
each Non-U.S. Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding and expressly and
irrevocably accepts and submits, for the benefit of the Holders from time to
time of the Securities, to the nonexclusive jurisdiction of any such court in
respect
63
<PAGE>
of any such action, suit or proceeding, for itself and with respect to its
properties, revenues and assets. Such appointment shall be irrevocable unless
and until the appointment of a successor authorized agent for such purpose, and
such successor's acceptance of such appointment, shall have occurred. Each
Non-U.S. Guarantor agrees to take any and all actions, including the filing of
any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent with respect to any such action shall be deemed, in every
respect, effective service of process upon any such Non-U.S. Guarantor.
Notwithstanding the foregoing, any action against any Non-U.S. Guarantor arising
out of or based on any Security may also be instituted by the Holder of such
Security in any court in the jurisdiction of organization of such Non-U.S.
Guarantor and such Non-U.S. Guarantor expressly accepts the jurisdiction of any
such court in any such action. The Company shall require the Authorized Agent to
agree in writing to accept the foregoing appointment as agent for service of
process.
SECTION 1508. WAIVER OF IMMUNITY.
To the extent that any Non-U.S. Guarantor or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Indenture or the
Securities, such Non-U.S. Guarantor, to the maximum extent permitted by law,
hereby irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
SECTION 1509. JUDGMENT CURRENCY.
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each Holder
against any loss incurred by it as a result of any judgment or order being given
or made and expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Trustee or such Holder on
the date of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the
Trustee or such Holder. The foregoing indemnity shall constitute a separate and
independent obligation of each Non-U.S. Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
SECTION 1510. RIGHT OF SUBROGATION.
Each Subsidiary Guarantor waives its respective right of subrogation
that such Subsidiary Guarantor might now have or hereafter acquire against the
Holders of the Securities that arise from the existence or performance of such
Subsidiary Guarantor's obligations under its respective Subsidiary Guarantee
until the Securities have been paid in full.
----------------------------
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.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
COMPANY
NGC CORPORATION
By _____________________________
H. Keith Kaelber
Senior Vice President
SUBSIDIARY GUARANTORS
NATURAL GAS CLEARINGHOUSE
By: NGC Corporation, its general partner
WARREN NGL, INC.
WARREN ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Warren Energy, Inc., its general partner
WARREN GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
NGC UK LIMITED
NGC CANADA, INC.
NGC FUTURES, INC.
WARREN GAS MARKETING, INC.
WARREN NGL PIPELINE COMPANY
WARREN INTRASTATE GAS SUPPLY, INC.
KANSAS GAS SUPPLY CORPORATION
WARREN PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Warren Petroleum G.P., Inc., its general
partner WTLPS, INC.
Electric Clearinghouse, Inc.
By _____________________________
H. Keith Kaelber
Senior Vice President
WPC LP, INC.
By
H. Keith Kaelber
ecaac
Acf, and except as set forth below, the above-captioned Securities
held by you for our account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) are
owned by United States person(s) that are (A) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) United States person(s) who acquired Securities through
the foreign branches of the United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States financial
institution hereby agrees, on its own behalf or through its agent, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities
is a United States or foreign financial institution described in clause (iii)
above (whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, the
Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Securities in transactions which did not require
registration under the Act.
As used herein, "United States" or "U.S." means the United States
(including the States and District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
[Signature Page - 1]
<PAGE>
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: ______________, 199__.
NAME OF PERSON MAKING CERTIFICATION
By: _____________________________________
- -------------------------------
* To be dated no earlier than the Certification Date.
[Signature Page - 2]
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE
EURO-CLEAR OPERATOR OR CEDEL S.A.
NGC CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of September 26, 1996, among
NGC Corporation, the Subsidiary Guarantors named therein and The First National
Bank of Chicago as of the date hereof, [ ] principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that are (A) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (A) or (B), each such United States financial institution
has agreed, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then
this is also to certify with respect to such principal amount of Securities set
forth above that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organizations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect set forth in the Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
B-1
<PAGE>
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: _______________, 199__.
(dated the Exchange Date or the Interest Payment Date)
[Morgan Guaranty Trust Company of New
York, as operator of the Euro-clear
System]
or
[CEDEL S.A.]
By: ____________________________________
B-2
EXHIBIT 4.1
NGC CORPORATION,
SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
---------------
INDENTURE
---------------
DATED AS OF SEPTEMBER 26, 1996
<PAGE>
NGC CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF SEPTEMBER 26, 1996
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss.310(a)(1) ............................................... 609
(a)(2) ................................................ 609
(a)(3) ................................................ Not Applicable
(a)(4) ................................................ Not Applicable
(a)(5) ................................................ 609
(b) ................................................ 608
(c) ................................................ Not Applicable
................................................ 610
ss.311(a) ............................................... 613
(b) ................................................ 613
(c) ................................................ Not Applicable
ss.312(a) ............................................... 701
................................................ 702
(b) ................................................ 702
(c) ................................................ 702
ss.313(a) ............................................... 703
(b) ................................................ 703
(c) ................................................ 703
(d) ................................................ 703
ss.314(a)(1)-(3)............................................... 704
(a)(4) ................................................ 101
................................................ 1004
(b) ................................................ Not Applicable
(c)(1) ................................................ 102
(c)(2) ................................................ 102
(c)(3) ................................................ Not Applicable
(d) ................................................ Not Applicable
(e) ................................................ 102
ss.315(a) ............................................... 601
(b) ................................................ 602
(c) ................................................ 601
(d) ................................................ 601
(e) ................................................ 514
(f) ................................................ Not Applicable
ss.316(a) ............................................... 101
(a)(1)(A) ................................................ 502
................................................ 512
(a)(1)(B) ................................................ 513
(a)(2) ................................................ Not Applicable
(b) ................................................ 508
(c) ................................................ 104
ss.317(a)(1) ............................................... 503
(a)(2) ................................................ 504
(b) ................................................ 1003
ss.318(a) ............................................... 108
- ---------------
<PAGE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
RECITALS OF THE COMPANY.......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION........................................................1
SECTION 101. Definitions.....................................................1
SECTION 102. Compliance Certificates and Opinions............................8
SECTION 103. Form of Documents Delivered to Trustee. ........................9
SECTION 104. Acts of Holders.................................................9
SECTION 105. Notices, Etc., to Trustee and Company..........................10
SECTION 106. Notice to Holders of Securities; Waiver. ......................11
SECTION 107. Language of Notices, Etc.......................................11
SECTION 108. Conflict with Trust Indenture Act. ............................12
SECTION 109. Effect of Headings and Table of Contents.......................12
SECTION 110. Successors and Assigns.........................................12
SECTION 111. Separability Clause............................................12
SECTION 112. Benefits of Indenture. ........................................12
SECTION 113. Governing Law..................................................12
SECTION 114. Legal Holidays.................................................12
ARTICLE TWO
SECURITY FORMS...............................................................12
SECTION 201. Forms Generally. ..............................................12
SECTION 202. Form of Trustee's Certificate of Authentication................13
SECTION 203. Securities in Global Form......................................13
SECTION 204. Form of Legend for Book-Entry Securities.......................14
SECTION 205. Form of Notation Relating to Subsidiary Guaranties.............14
ARTICLE THREE
THE SECURITIES...............................................................16
SECTION 301. Amount Unlimited; Issuable in Series...........................16
SECTION 302. Denominations..................................................18
SECTION 303. Execution, Authentication, Delivery and Dating.................18
SECTION 304. Temporary Securities...........................................20
SECTION 305. Registration, Registration of Transfer and Exchange............21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons...24
SECTION 307. Payment of Interest; Interest Rights Preserved.................25
SECTION 308. Persons Deemed Owners. ........................................26
SECTION 309. Cancellation...................................................26
SECTION 310. Computation of Interest........................................27
i
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE...................................................27
SECTION 401. Satisfaction and Discharge of Indenture........................27
SECTION 402. Application of Trust Money.....................................28
ARTICLE FIVE
REMEDIES.....................................................................28
SECTION 501. Events of Default..............................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............29
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................30
SECTION 504. Trustee May File Proofs of Claim...............................31
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons...................................................31
SECTION 506. Application of Money Collected.................................31
SECTION 507. Limitation on Suits. ..........................................32
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................33
SECTION 509. Restoration of Rights and Remedies.............................33
SECTION 510. Rights and Remedies Cumulative.................................33
SECTION 511. Delay or Omission Not Waiver...................................33
SECTION 512. Control by Holders of Securities...............................33
SECTION 513. Waiver of Past Defaults........................................34
SECTION 514. Undertaking for Costs..........................................34
SECTION 515. Waiver of Stay or Extension Laws...............................34
ARTICLE SIX
THE TRUSTEE..................................................................34
SECTION 601. Certain Duties and Responsibilities............................34
SECTION 602. Notice of Defaults.............................................35
SECTION 603. Certain Rights of Trustee......................................35
SECTION 604. Not Responsible for Recitals or Issuance of Securities.........36
SECTION 605. May Hold Securities............................................36
SECTION 606. Money Held in Trust............................................36
SECTION 607. Compensation and Reimbursement.................................36
SECTION 608. Disqualification; Conflicting Interests........................37
SECTION 609. Corporate Trustee Required; Eligibility........................37
SECTION 610. Resignation and Removal; Appointment of Successor..............37
SECTION 611. Acceptance of Appointment by Successor.........................38
SECTION 612. Merger, Conversion, Consolidation or Succession to Business....39
SECTION 613. Preferential Collection of Claims Against Company..............39
SECTION 614. Appointment of Authenticating Agent............................39
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................41
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......41
SECTION 702. Preservation of Information; Communications to Holders.........41
SECTION 703. Reports by Trustee.............................................42
SECTION 704. Reports by Company.............................................42
ii
<PAGE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.........................42
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...........42
SECTION 802. Successor Substituted..........................................43
SECTION 803. Subsidiary Guarantors May Consolidate, Etc., Only
on Certain Terms.............................................43
SECTION 804. Successor Substituted..........................................43
SECTION 805. Release of Subsidiary Guarantors...............................44
ARTICLE NINE
SUPPLEMENTAL INDENTURES......................................................44
SECTION 901. Supplemental Indentures without Consent of Holders.............44
SECTION 902. Supplemental Indentures with Consent of Holders................45
SECTION 903. Execution of Supplemental Indentures...........................46
SECTION 904. Effect of Supplemental Indentures..............................46
SECTION 905. Conformity with Trust Indenture Act............................47
SECTION 906. Reference in Securities to Supplemental Indentures.............47
ARTICLE TEN
COVENANTS....................................................................47
SECTION 1001. Payment of Principal, Premium and Interest....................47
SECTION 1002. Corporate Existence and Maintenance of Office or Agency......47
SECTION 1003. Money for Securities Payments to Be Held in Trust. ...........48
SECTION 1004. Additional Amounts............................................49
SECTION 1005. Purchase of Securities by Company or Subsidiary...............50
SECTION 1006. Limitation on Liens...........................................50
SECTION 1007. Statement by Officer as to Default............................51
SECTION 1008. Waiver of Certain Covenants...................................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.....................................................52
SECTION 1101. Applicability of Article......................................52
SECTION 1102. Election to Redeem; Notice to Trustee.........................52
SECTION 1103. Selection of Securities to Be Redeemed........................52
SECTION 1104. Notice of Redemption..........................................52
SECTION 1105. Deposit of Redemption Price...................................53
SECTION 1106. Securities Payable on Redemption Date.........................53
SECTION 1107. Securities Redeemed in Part...................................54
ARTICLE TWELVE
SINKING FUNDS................................................................54
SECTION 1201. Applicability of Article......................................54
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........54
SECTION 1203. Redemption of Securities for Sinking Fund.....................55
iii
<PAGE>
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE...........................................55
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance..55
SECTION 1302. Defeasance and Discharge......................................55
SECTION 1303. Covenant Defeasance...........................................55
SECTION 1304. Conditions to Defeasance or Covenant Defeasance...............56
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.....................57
SECTION 1306. Reinstatement.................................................58
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF BEARER SECURITIES.....................................58
SECTION 1401. Purposes for Which Meetings May Be Called.....................58
SECTION 1402. Call, Notice and Place of Meetings............................58
SECTION 1403. Persons Entitled to Vote at Meetings..........................58
SECTION 1404. Quorum; Action................................................59
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................59
SECTION 1406. Counting Votes and Recording Action of Meetings...............60
ARTICLE FIFTEEN
GUARANTEES OF SECURITIES.....................................................60
SECTION 1501. Unconditional Guarantees. ....................................60
SECTION 1502. Limitation of Subsidiary Guarantors' Liability................62
SECTION 1503. Contribution..................................................62
SECTION 1504. Execution and Delivery of Subsidiary Guarantees...............62
SECTION 1505. Addition of Secondary Subsidiary Guarantors...................63
SECTION 1506. Release of Subsidiary Guarantee...............................63
SECTION 1507. Consent to Jurisdiction and Service of Process................63
SECTION 1508. Waiver of Immunity............................................64
SECTION 1509. Judgment Currency.............................................64
SECTION 1510. Right of Subrogation..........................................64
iv
<PAGE>
INDENTURE, dated as of September 26, 1996, among NGC Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 13430 Northwest
Freeway, Suite 1200, Houston, Texas 77040, the Subsidiary Guarantors (as defined
hereinafter) and The First National Bank of Chicago, a national banking
association, 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
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
Each of the Subsidiary Guarantors (as defined hereinafter) initially a
party hereto is a direct or indirect wholly-owned subsidiary of the Company.
Such Subsidiary Guarantors will derive direct and indirect benefit from the
issuance of the Securities; accordingly, such Subsidiary Guarantors have
authorized the guarantee of the Company's obligations under this Indenture and
the Securities, and to provide therefor such Subsidiary Guarantors have duly
authorized the execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company and each of the Subsidiary Guarantors initially a party hereto, 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 (together with the related Subsidiary Guarantees) 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 (together with the related
Subsidiary Guarantees), 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 in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles"
1
<PAGE>
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of this Indenture; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision, and the words "date of
this Indenture" and "date hereof" and other words of similar import
refer to the effective date of the original execution and delivery of
this Indenture, VIZ. September 26, 1996.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the fair value of the assets of such Subsidiary Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"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.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global form.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of that
board, and, with respect to any Subsidiary of the Company, either the board of
directors of such Subsidiary or any duly authorized committee of that board or,
if the Subsidiary is not a corporation, the group of Persons having authority to
manage the Subsidiary or any duly authorized committee of that group.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Subsidiary of the
Company to have been duly adopted by the Board of Directors of the Company or
such Subsidiary, as the case may be, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
Securities in global form for purposes of Sections 201 and 203 and Article Three
of this Indenture.
2
<PAGE>
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Certification Date" means with respect to Securities of any series (i),
if Bearer Securities of such series are not to be initially represented by a
temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B), if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
"Clearinghouse" means Natural Gas Clearinghouse, a general partnership
organized under the laws of the State of Colorado.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"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 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 principal office of the Trustee in
Chicago, Illinois, at which at any particular time its corporate trust business
shall be administered.
The term "corporation" means a corporation, association, limited
liability company, joint-stock company, business trust or similar organization.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECI" means Electric Cleaaringhouse, Inc., a Texas corporation.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
3
<PAGE>
"Funded Indebtedness" means all outstanding indebtedness (including
indebtedness incurred under any revolving credit, letter of credit or working
capital facility) that matures by its terms, or that is renewable at the option
of any obligor thereon to a date, more than one year after the date on which
such indebtedness is originally incurred.
"Holder," when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"HUB Services" means HUB Services, Inc., a Delaware corporation.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
The term "interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issue Date" means the Date on which Securities are originally issued
under this Indenture.
"Kansas Gas" means Kansas Gas Supply Corporation, a Delaware
corporation.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (a) total current liabilities (excluding current maturities of
long-term debt and preferred stock); (b) all reserves for depreciation and other
asset valuation reserves but excluding reserves for deferred federal and state
income taxes; (c) all intangible assets such as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense carried as an asset;
and (d) all appropriate adjustments on account of minority interests of other
Persons holding common stock in any Subsidiary.
"NGC Anadarko" means NGC Anadarko Gathering Systems, Inc., a Texas
corporation.
"NGC Canada" means NGC Canada, Inc., an Alberta corporation.
"NGC Futures" means NGC Futures, Inc., a Texas corporation.
"NGC Storage" means NGC Storage, Inc., a Delaware corporation.
"NGC UK" means NGC UK Limited, a United Kingdom limited corporation.
"NOTTI" means NGC Oil Trading and Transportation, Inc. a Texas
corporation.
4
<PAGE>
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company or a Subsidiary Guarantor, as the case
may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which is issued at
a price lower than the principal amount payable upon the Stated Maturity thereof
and which provides for an amount less than the principal amount thereof to be
due and payable upon redemption thereof or upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (a) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (b) the principal amount of a Security denominated in a
foreign currency or currencies, including composite currencies, shall be the
Dollar equivalent, determined on the date of original issuance of such Security
in the manner provided as contemplated by Section 301, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
on the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (c) Securities owned by the
Company, any Subsidiary Guarantor, or any other obligor upon the Securities or
any Affiliate of the Company, any Subsidiary Guarantor, or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, any
Subsidiary Guarantor, or any other obligor upon the Securities or any Affiliate
of the Company, any Subsidiary Guarantor, or of such other obligor.
5
<PAGE>
"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, partnership, joint venture,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places as specified in accordance with Section 301
where, subject to the provisions of Section 1002, the principal of and any
premium and interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Primary Subsidiary Guarantors" means Clearinghouse, Warren Petroleum,
Warren NGL, Warren Liquids and NOTTI, and each of their respective successors
and assigns.
"Principal Property" means any natural gas, natural gas liquids or crude
oil pipeline, distribution system, gathering system, storage facility or
processing plant, except any such property that in the good faith opinion of the
Board of Directors of the Company is not of material importance to the business
conducted by the Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary of the Company which owns a
Principal Property.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer in the corporate trust department (or any successor group) of the
Trustee, including any Vice President, any Trust Officer, or any other officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Corporate Trust Office because of his
or her knowledge of and familiarity with the particular subject.
"Secondary Subsidiary Guarantors" means (i) Warren Energy Resources, NGC
Futures, NGC UK, NGC Canada, Warren Marketing, Warren Pipeline, WIGS, Kansas
Gas, WPC, ECI and WTLPS and (ii)any Subsidiary (direct or indirect) of the
Company that delivers a Subsidiary Guarantee pursuant to Section 1505 hereof,
and in each case their respective successors and assigns.
6
<PAGE>
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, or (ii) any partnership or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned. For the purposes of this
definition, "securities having ordinary voting power" means securities or other
equity interests which ordinarily have voting power for the election of
directors, or persons having management power with respect to the Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Subsidiary Guarantee" means a guarantee made by a Subsidiary of the
Company pursuant to Section 1501 hereof.
"Subsidiary Guarantor" means (i) each Primary Subsidiary Guarantor, and
(ii) each Secondary Subsidiary Guarantor, if any, but excluding any Subsidiary
of the Company released from its Subsidiary Guarantee pursuant to Section 805 or
Section 1505 (unless such Subsidiary becomes a Secondary Subsidiary Guarantor
pursuant to Section 1505 subsequent to such release).
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 905; PROVIDED, HOWEVER, that in 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.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section 1304.
7
<PAGE>
"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."
"Warren Energy Resources" means Warren Energy Resources, Limited
Partnership, a Delaware limited partnership.
"Warren Liquids" means Warren Gas Liquids, Inc., a Delaware corporation.
"Warren Marketing " means Warren Gas Marketing, Inc., a Delaware
corporation.
"Warren NGL" means Warren NGL, Inc., a Delaware corporation.
"Warren Petroleum" means Warren Petroleum Company, Limited Partnership,
a Delaware limited partnership.
"Warren Pipeline" means Warren NGL Pipeline Company, a Delaware
corporation.
"WIGS" means Warren Intrastate Gas Supply, Inc., a Delaware corporation.
"WPC" means WPC LP, Inc., a Delaware corporation.
"WTLPS" means WTLPS, Inc., a Delaware corporation.
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 and the Subsidiary
Guarantors 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 of a Subsidiary Guarantor, 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.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
8
<PAGE>
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.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fourteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Registered Securities of any series entitled to give
9
<PAGE>
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent, waiver or other Act as to his
Security or portion of his Security; PROVIDED, HOWEVER, that such revocation
shall be effective only if the Trustee receives notice of such revocation before
the date the Act becomes effective.
(g) Without limiting the foregoing, a Holder entitled hereunder to give
or 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 different 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 Department, or
10
<PAGE>
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, to the
attention of its Treasurer, or at any other address previously furnished
in writing to the Trustee by the Company; and in the case of Bearer
Securities, at the address of an office or agency located outside the
United States maintained by the Company in accordance with Section 1002.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event,
at the address of such Holder as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such publication
to be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
11
<PAGE>
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and govern this Indenture or any other provision of this Indenture
that is required to be in this Indenture by the Trust Indenture Act, such
required provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that 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 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture, the Subsidiary Guarantees and the Securities and coupons
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to principles of conflicts of laws.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons other than a provision in the Securities of any series 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, PROVIDED
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
12
<PAGE>
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the form (including temporary or permanent global form) as shall be established
by or pursuant to a Board Resolution of the Company 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 (including the notations thereon relating to the Subsidiary Guarantees
contemplated by Section 205), 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 law, or with the rules of any securities exchange or to
conform to general usage, all as may, consistently herewith, be determined by
the officers executing such Securities or coupons, as evidenced by their
execution of the Securities or coupons. If temporary Securities of any series
are issued in global form as permitted by Section 304, the form thereof shall be
established as provided in the preceding sentence. A copy of the Board
Resolution of the Company establishing the forms of Securities or coupons of any
series (or any such temporary global Security) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
notations of Subsidiary Guarantees, as the case may be, as evidenced by their
execution of such Securities or coupons or notations of Subsidiary Guarantees,
as the case may be.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By ___________________________
AUTHORIZED OFFICER."
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified 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 Security in permanent global form 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
13
<PAGE>
the Company with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 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 Security in permanent global form shall be made to
the Person or Persons specified therein.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Book-Entry Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depository to
a nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository) may be registered except in such limited
circumstances."
SECTION 205. FORM OF NOTATION RELATING TO SUBSIDIARY GUARANTIES.
The form of notation to be set forth on each Security relating to the
Subsidiary Guaranties shall be in substantially the following form:
14
<PAGE>
SUBSIDIARY GUARANTEE
To the extent and subject to the limitations set forth in the
Indenture, the Subsidiary Guarantors (as defined in the Indenture
referred to in the Security upon which this notation is endorsed and
each hereinafter referred to as a "Subsidiary Guarantor," which term
includes any successor or additional Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a)
the due and punctual payment of the principal (and premium, if any) of
and interest on the Securities and related coupons, (b) the due and
punctual payment of all other amounts due and payable under the
Indenture and the Securities by the Company, and (c) the due and
punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in
the Indenture. Capitalized terms used herein shall have the meanings
assigned to them in the Indenture unless otherwise indicated.
The obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under the Indenture, result in the obligations
of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under
applicable federal, state or foreign law. Each Subsidiary Guarantor that
makes a payment or distribution under a Subsidiary Guarantee shall be
entitled to a contribution from each other Subsidiary Guarantor in a pro
rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor.
Under certain limited circumstances, the Subsidiary Guarantors
may be released from the Subsidiary Guarantee upon the terms and subject
to the conditions provided in the Indenture.
The obligations of the Subsidiary Guarantors to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guaranties and
the Indenture are expressly set forth in the Indenture, including
Article Fifteen thereof, and reference is hereby made to the Indenture
for the precise terms of the Subsidiary Guarantees.
NATURAL GAS CLEARINGHOUSE
By: NGC Corporation, its general partner
WARREN NGL, INC.
WARREN ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Warren Energy, Inc., its general partner
WARREN GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
NGC UK LIMITED
NGC CANADA, INC.
NGC FUTURES, INC.
WARREN GAS MARKETING, INC.
WARREN NGL PIPELINE COMPANY
WARREN INTRASTATE GAS SUPPLY, INC.
KANSAS GAS SUPPLY CORPORATION
WARREN PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Warren Petroleum GP, Inc., its general partner
WPC LP, INC.
WTLPS, INC.
Electric Clearinghouse, Inc.
By _____________________________
15
<PAGE>
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, and each such series
shall rank equally and PARI PASSU with each other series. There shall be
established in or pursuant to a Board Resolution of the Company 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 all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities
of the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form, as Book Entry Securities, or otherwise, with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305;
(4) the Person to whom any interest on any Registered 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, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if
any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable,
the Regular Record Date for any interest payable on any Registered
Securities on any Interest Payment Date and whether, and under what
circumstances, additional amounts with respect to such Securities shall
be payable as set forth in Section 1004;
16
<PAGE>
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and notices and demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(8) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series may be so redeemed;
(9) the obligation, if any, of the Company to redeem, purchase,
or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States and the manner of determining the equivalent thereof
in the currency of the United States for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of and any premium or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the 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;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with respect
to such Book-Entry Security or Securities and (b) the circumstances
under which any such Book-Entry Security may be exchanged for Securities
registered in the name of, and any transfer of such Book-Entry Security
may be registered to, a Person other than such Depository or its
nominee, if other than as set forth in Section 305;
(16) if either or both of the provisions of Section 1302 or 1303
are applicable to the Securities of such series and any additional means
of discharge pursuant to Section 1302 or 1303 and any additional
conditions to the provisions of Section 1302 or 1303;
17
<PAGE>
(17) any other Events of Default or covenants with respect to
the Securities of such series; and
(18) 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)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
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.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or its Chief Financial
Officer, 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. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company and having the
notation of Subsidiary Guarantees thereon executed by the Subsidiary Guarantors,
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; PROVIDED,
HOWEVER, that, unless otherwise provided with respect to such series, in
connection with its original issuance, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) (the "restricted period") no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED, FURTHER,
that, unless otherwise provided with respect to such series, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit A to this Indenture, dated no earlier than the
Certification Date. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance during the
restricted period of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
18
<PAGE>
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating Securities, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the forms of such Securities and coupons established by
or pursuant to a Board Resolution of the Company as contemplated by
Section 201 have been established in conformity with the provisions of
this Indenture, including its requirements for notations thereon
relating to the Subsidiary Guarantees;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution of the Company as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and the Subsidiary Guarantors enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution of the Company 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 two preceding
paragraphs, 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 paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon issuance of the first Security
of such series to be issued.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its authentication;
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement
19
<PAGE>
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security 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 or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons, and having the notations of Subsidiary Guarantees thereon and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and notations of Subsidiary Guarantees may
determine, as evidenced by their execution of such Securities and notations of
Subsidiary Guarantees. In the case of any series issuable as Bearer Securities,
such temporary Securities may be in global form. A temporary Bearer Security
shall be delivered only in compliance with the conditions set forth in Section
303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations and
having the notations of Subsidiary Guarantees thereon; PROVIDED, HOWEVER, that
no definitive Bearer Security shall be issued in exchange for a temporary
Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series (including the notations thereon
relating to the Subsidiary Guarantees contemplated by Section 205) in aggregate
principal amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date such temporary
global Security shall be surrendered by the Common Depositary to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities of that series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL S.A. as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B to this Indenture. The definitive Securities to be
delivered in exchange for
20
<PAGE>
any such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and if any
combination thereof is so specified, as requested by the beneficial owner
thereof; PROVIDED, HOWEVER, that no definitive Bearer Security or permanent
global Security shall be delivered in exchange for a temporary Bearer Security
except in compliance with the conditions set forth in Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent and after the
Exchange Date, the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like tenor
following such beneficial owner's delivery to Euro-clear or CEDEL S.A., as the
case may be, of a certificate in the form set forth in Exhibit A to this
Indenture dated no earlier than the Certification Date. Unless otherwise
specified in such temporary global Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series shall be
payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery
by Euro- clear and CEDEL S.A. to the Trustee of a certificate or certificates in
the form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euro-clear or CEDEL
S.A., as the case may be, a certificate in the form set forth in Exhibit A to
this Indenture. Any interest so received by Euro-clear and CEDEL S.A. and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and 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 each series of Registered Securities and
the registration of transfers of such Registered Securities. The Company shall
serve initially as "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated
21
<PAGE>
transferee or transferees, one or more new Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, each such Security having a notation of Subsidiary Guarantees
thereon.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any 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 (including the notations
thereon relating to the Subsidiary Guaranties contemplated by Section 205) which
the Holder making the exchange is entitled to receive. Unless otherwise provided
with respect to any series of Securities, Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only to
the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
(including the notations thereon relating to the Subsidiary Guarantees
contemplated by Section 205) which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company
(including the notations thereon relating to the Subsidiary Guaranties
contemplated by Section 205). On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 102 or be accompanied by an Opinion of Counsel) by
the Common Depositary or such other depositary or Common
22
<PAGE>
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations (including the
notations thereon relating to the Subsidiary Guarantees contemplated by Section
205) and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series is to be redeemed and ending on the relevant Redemption Date; and
PROVIDED, FURTHER, that no Bearer Security delivered in exchange for a portion
of a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such permanent global Security shall be returned by the Trustee to the Common
Depositary or such other depositary or Common Depositary referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with
provisions of this Indenture.
All Securities and the Subsidiary Guarantees noted thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Subsidiary Guarantors, respectively,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption, or if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
23
<PAGE>
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any series
may be registered to, any Person other than the Depository for such Security or
its nominee only if (i) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Book-Entry Security or if
at any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall be
so exchangeable and the transfer thereof so registrable or (iii) there shall
have occurred and be continuing an Event of Default, with respect to the
Securities of such series. Upon the occurrence in respect of any Book-Entry
Security of any series of any one or more of the conditions specified in clause
(i), (ii) or (iii) of the preceding sentence or such other conditions as may be
specified, such Book-Entry Security may be exchanged for Securities registered
in the names of, and the transfer of such Book-Entry Security may be registered
to, such Persons (including Persons other than the Depository with respect to
such series and its nominees) as such Depository shall direct. Notwithstanding
any other provision of this Indenture, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any
Book-Entry Security shall also be a Book-Entry Security and shall bear the
legend specified in Section 204 except for any Security authenticated and
delivered in exchange for, or upon registration of transfer of, a Book-Entry
Security pursuant to the preceding sentence.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND COUPONS.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto 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 (including the notations thereon relating to the
Subsidiary Guarantees contemplated by Section 205) and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company
and the respective
24
<PAGE>
Subsidiary Guarantors, whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and any such new Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise so provided, at the option of the Company,
payment of interest on any Registered Security may be made by check mailed on or
before the due date to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at the address of
such Holder as it appears in the Security Register, not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper,
PROVIDED such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any
25
<PAGE>
securities exchange on which such Securities may be then 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 and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Subsidiary Guarantors, the
Trustee nor any agent of the Company, the Subsidiary Guarantors or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered shall
be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 306. All Bearer Securities
and unmatured coupons held by the Trustee pending such cancellation or
reissuance shall be deemed to be delivered for all purposes of this Indenture
and the Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for 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
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities and coupons held
by the Trustee shall be disposed of in accordance with its customary practice.
26
<PAGE>
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
with respect to Securities of a Series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for, and any right to receive additional amounts, as provided in Section 1004),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
Securities of a Series, when
(1) either
(A) all Securities of such Series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (ii)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all such Securities and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
any 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
27
<PAGE>
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Company under Sections 306, 610(e) and 701 and the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited.
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, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series of Securities or it is specifically deleted
or modified in or pursuant to the terms of such series or in the form of
Security of such series:
(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; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) any Subsidiary Guarantee, other than a Subsidiary Guarantee
of a Secondary Subsidiary Guarantor that is not required to be created
by the terms of Section 1505(a) hereof and is created solely pursuant to
Section 1505(b) hereof, shall for any reason cease to be, or be asserted
by the Company or any Subsidiary Guarantor, as applicable, not to be, in
full force and effect, enforceable in accordance with its terms (except
pursuant to the release of any such Subsidiary Guarantee in accordance
with this Indenture); or
(5) default in the performance, or breach, of any covenant or
warranty of the Company or any Subsidiary Guarantor in this Indenture
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and
28
<PAGE>
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Subsidiary Guarantor 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 or any
Subsidiary Guarantor as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary Guarantor
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Subsidiary Guarantor or of any
substantial part of the property of the Company or any Subsidiary
Guarantor, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(7) the commencement by the Company or any Subsidiary Guarantor
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 or any Subsidiary Guarantor in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or the commencement of
any bankruptcy or insolvency case or proceeding against the Company or
any Subsidiary Guarantor, or the filing by the Company or any Subsidiary
Guarantor of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or state law, or the consent by the
Company or any Subsidiary Guarantor to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Subsidiary Guarantor or of any substantial part of the
property of the Company or any Subsidiary Guarantor, or the making by
the Company or any Subsidiary Guarantor of an assignment for the benefit
of creditors, or the admission by the Company or any Subsidiary
Guarantor in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or any
Subsidiary Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
29
<PAGE>
(1) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on, and any additional amounts
payable as set forth in Section 1004 on, all Securities of that
series and any coupons appertaining thereto,
(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, and any additional amounts
payable as set forth in Section 1004 on, at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any 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 and coupons, the whole amount then due and payable on
such Securities and coupons 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 (or, in the case of Original Issue
Discount Securities, the Securities' yield to maturity) and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, any Subsidiary Guarantor or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, any Subsidiary
Guarantor or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
30
<PAGE>
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or the
Subsidiary Guarantors (or any other obligor upon the Securities), or the
property or the creditors of the Company or any of the Subsidiary Guarantors,
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.
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 Subsidiary Guarantees 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 Holders,
vote for the election of a trustee of 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 OR
COUPONS.
All rights of action and claims under this Indenture or the Securities
or Subsidiary Guarantees or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and coupons
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal and any premium and interest, respectively.
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
31
<PAGE>
In any case in which Securities are Outstanding that are denominated in
more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided with
respect to any series of Securities, the Trustee shall calculate the amount of
such payments as follows: (i) as of the day the Trustee collects an amount under
this Article, the Trustee shall, as to each Holder of a Security to whom an
amount is due and payable under this Section that is denominated in a foreign
currency, determine that amount in Dollars that would be obtained for the amount
owing such Holder, using the rate of exchange at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York Dollars
with such amount owing; (ii) calculate the sum of all Dollar amounts determined
under (i) and add thereto any amounts due and payable in Dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due and
payable in Dollars, as the case may be, as a numerator, and the sum calculated
in (ii) as a denominator, calculate as to each Holder of a Security to whom an
amount is owed under this Section the fraction of the amount collected under
this Article payable to such Holder. Any expenses incurred by the Trustee in
actually converting amounts owing Holders of Securities denominated in a
currency other than that in which any amount is collected under this Article
shall be likewise (in accordance with this paragraph) borne ratably by all
Holders of Securities to whom amounts are payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in the City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under this Section caused
by a change in exchange rates between the time the amount of a judgment against
the Company is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee 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;
32
<PAGE>
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections 305
and 307) any interest on such Security or payment of such coupon on the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon 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
Subsidiary Guarantors, the Trustee and the Holders of Securities and coupons
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 or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon 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 of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
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;
33
<PAGE>
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) the Trustee shall not be obligated to take any action unduly
prejudicial to Holders not joining in such direction or involving the
Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to the Securities of
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 which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
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 or the Subsidiary
Guarantors.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Guarantors 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 to take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the Subsidiary Guarantors (to the extent that each 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
34
<PAGE>
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 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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 of the Company shall be
sufficiently evidenced by a Board Resolution of the Company;
(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
35
<PAGE>
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the notations of
Subsidiary Guarantees thereon (except the Trustee's certificates of
authentication) and in any coupons shall be taken as the statements of the
Company or the Subsidiary Guarantors, as the case may be, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities (including the notation of Subsidiary Guarantees
thereon) or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or any Subsidiary Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 608 and 613, may otherwise deal with the
Company and the Subsidiary Guarantors 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 or any Subsidiary Guarantor.
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 and each predecessor 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 and each predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
36
<PAGE>
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (6) or (7) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
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.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. No obligor upon any Security
issued under this Indenture or a person directly or indirectly controlling,
controlled by or under common control with such obligor shall serve as Trustee
under this Indenture.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security
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
37
<PAGE>
(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 a 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 case, (i) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the 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 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 of Securities of such series and accepted appointment in the manner
required by Section 611, any Holder of a Security 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. Such court may thereupon, after such notice, if any,
as it may deem proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series 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.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, with like effect as
if originally named Trustee hereunder; 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. Any Trustee ceasing to act shall, nevertheless,
retain a prior lien upon all property or funds held or collected by such Trustee
to secure any amounts then due it pursuant to the provisions of Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each
38
<PAGE>
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 as 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 rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company or
any Subsidiary Guarantor (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company or any Subsidiary Guarantor (or any
such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may, by an instrument in writing, appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which may be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or 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.
39
<PAGE>
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. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States, any State thereof or the
District of Columbia (or, if Bearer Securities, organized and doing business
under the laws of the country in which the Bearer Securities are eligible),
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 (or, if Bearer Securities, an
authority of the country in which the Bearer Securities are eligible). If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible shall,
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 notice of resignation or upon such termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Registered Securities, if any, of the series with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, 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 been endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
40
<PAGE>
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By: _______________________________
AS AUTHENTICATING AGENT
By: ________________________________
AUTHORIZED OFFICER"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be such
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after a Regular Record Date, a
list, in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
Securities as of the immediately preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701, and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
41
<PAGE>
(b) The rights of the 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.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Subsidiary Guarantors and the Trustee that
neither the Company nor the Subsidiary Guarantors nor the Trustee nor any agent
of any 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 and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) on or before July 15 in each year following the date hereof, 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.
(b) 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 (or delisted) on any
stock exchange.
SECTION 704. REPORTS BY COMPANY.
In addition to the certificates delivered to the Trustee pursuant to
Section 1007, the Company (and the Subsidiary Guarantors, if applicable) 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 Securities Exchange Act of 1934, as amended, 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 other Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest
(including all additional amounts, if any, payable pursuant to Section
1004) on all the Securities and the performance or observance of every
other covenant of this Indenture on the part of the Company to be
performed or observed;
42
<PAGE>
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and coupons and may liquidate
and dissolve.
SECTION 803. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Subject to the terms of Section 805, no Subsidiary Guarantor shall
consolidate with or merge into any other Person (other than the Company or
another Subsidiary Guarantor) or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person (other than the Company
or another Subsidiary Guarantor), unless:
(1) the Person formed by such consolidation or into which the
Subsidiary Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Subsidiary Guarantor substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States, any State thereof or the
District of Columbia (or, in the case of a Subsidiary Guarantor
organized under the laws of a jurisdiction outside the United States, a
corporation, partnership, trust or similar business organization
organized and existing under the laws of such foreign jurisdiction) and,
except to the extent Section 805 would result in the release of the
Subsidiary Guarantee of such Subsidiary Guarantor, shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all obligations of the
Subsidiary Guarantor under the Subsidiary Guarantee;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
and
(3) the Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this article and that all conditions
precedent herein provided for relating to such transition have been
complied with.
SECTION 804. SUCCESSOR SUBSTITUTED.
Upon any consolidation of a Subsidiary Guarantor with, or merger of a
Subsidiary Guarantor into, any other Person (other than the Company or another
Subsidiary Guarantor) or any conveyance, transfer or lease of the properties and
assets of a Subsidiary Guarantor substantially as an entirety to any other
Person (other than
43
<PAGE>
the Company or another Subsidiary Guarantor) in accordance with Section 803, and
except to the extent Section 805 would result in the release of the Subsidiary
Guarantee of such Subsidiary Guarantor, the successor Person formed by such
consolidation or into which the Subsidiary Guarantor 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, a Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as a
Subsidiary Guarantor 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 its Subsidiary Guarantee and may liquidate and dissolve.
SECTION 805. RELEASE OF SUBSIDIARY GUARANTORS.
Notwithstanding anything to the contrary in this Article Eight, in the
event a Subsidiary Guarantor consolidates with or merges into, or conveys,
transfers or leases its properties and assets substantially as an entirety to
any other Person (other than the Company or another Subsidiary of the Company)
pursuant to a transaction that is otherwise in compliance with the terms of this
Indenture, such Subsidiary Guarantor shall be deemed to be released from its
Subsidiary Guarantee and all other obligations and covenants under this
Indenture to the extent that all guarantees and obligations of such Subsidiary
Guarantor with respect to Funded Indebtedness of the Company (other than the
Securities) shall also terminate upon the consummation of such transaction. The
Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a Company Request accompanied by an Officers' Certificate certifying
that the transaction was completed by the Company in accordance with the
provisions of this Indenture, and following the receipt by the Trustee of any
such notice, the Company and the Trustee shall cause this Indenture to be
amended as provided in Section 901 hereof; PROVIDED, HOWEVER, that the failure
to so amend this Indenture shall not affect the validity of the termination of
the Subsidiary Guarantee of such Subsidiary Guarantor.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Subsidiary Guarantors, 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
or a Subsidiary Guarantor and the assumption by any such successor of
the covenants of the Company or the Subsidiary Guarantor herein and in
the Securities or in the Subsidiary Guarantee pursuant to Article Eight;
or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with the Trustee
or otherwise secure any series of the Securities or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all
or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
44
<PAGE>
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, PROVIDED that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to 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 secure the Securities pursuant to the requirements of
Section 1006 or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED, that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(10) to add any Person as a Secondary Subsidiary Guarantor as
provided in Section 1505 hereof, or to limit the ability of a Secondary
Subsidiary Guarantor to be released from its obligations under the
Indenture or the Subsidiary Guarantee of such Secondary Subsidiary
Guarantor pursuant to Section 1506 hereof; or
(11) to release a Secondary Subsidiary Guarantor from its
Subsidiary Guarantee pursuant to Section 1506 hereof; or
(12) to release a Subsidiary Guarantor from its Subsidiary
Guarantee pursuant to Section 805 hereof.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by Board Resolution, the Subsidiary Guarantors, when authorized
by Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
45
<PAGE>
(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 change the Redemption Date
thereof, or change any obligation of the Company to pay additional
amounts pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any
Security or any premium or interest thereon is payable, or change any
right of redemption, purchase or repayment by the Company at the option
of the Holder, 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 reduce the requirements of Section 1404 for
quorum or voting, or
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 1002,
or
(4) 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 of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1008 or the deletion of this provision, in
accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes;
46
<PAGE>
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company, with the notations of Subsidiary
Guarantees thereon executed by the Subsidiary Guarantors, and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series
and of like tenor.
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, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. CORPORATE EXISTENCE AND MAINTENANCE OF OFFICE OR AGENCY.
Except as expressly permitted by this Indenture, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence of the Company and each of the Subsidiary
Guarantors.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series, the related Subsidiary Guarantees and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company and the Subsidiary Guarantors in respect of the Securities of
that series, the Subsidiary Guarantees thereof and this Indenture may be served
and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be
47
<PAGE>
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1004);
PROVIDED, HOWEVER, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series, the related Subsidiary Guarantees and
this Indenture may be served. The Company will give prompt written notice to the
Trustee and prompt notices to the Holders as provided in Section 106 of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at any Paying Agent for such series
located outside the United States, and the Company hereby appoints the same as
its agents to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where 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 accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any other change in
the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any coupons appertaining thereto, it
will, on or before each due date of the principal of and 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 or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or prior to each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such
48
<PAGE>
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Company or 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) 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, and 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Security or any coupon appertaining thereto shall (unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law) thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, 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.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the
49
<PAGE>
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 1005. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and will
not permit any of its Subsidiaries to, purchase any Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Securities of that
series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
SECTION 1006. LIMITATION ON LIENS.
(a) The Company will not, nor will it permit any Principal Subsidiary
to, issue, assume or guarantee any indebtedness for money borrowed (hereinafter
in this Article Ten referred to as "Debt"), if such Debt is secured by a
mortgage, pledge, security interest or lien (any mortgage, pledge, security
interest or lien being hereinafter in this Article Ten referred to as a
"mortgage" or "mortgages") upon any Principal Property of the Company or any
Principal Subsidiary or upon any shares of stock or other equity interest or
indebtedness of any Principal Subsidiary (whether such Principal Property,
shares of stock or other equity interest or indebtedness is now owned or
hereafter acquired), without in any such case effectively providing,
concurrently with the issuance, assumption or guarantee of such Debt, that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Principal Subsidiary
ranking equally with the Securities then outstanding and existing or thereafter
created) shall be secured equally and ratably with (or prior to) such Debt;
PROVIDED, HOWEVER, that the foregoing restriction shall not apply to:
(1) mortgages on property acquired, constructed or improved by
the Company or any Principal Subsidiary after the date of this Indenture
which are created or assumed contemporaneously with, or within 180 days
after, such acquisition (or in the case of property constructed or
improved, after the completion and commencement of commercial operation
of such property, whichever is later) to secure or provide for the
payment of any part of the purchase price of such property or the cost
of such construction or improvement, it being understood that if a
commitment for such a financing is obtained prior to or within such
180-day period, the applicable mortgage shall be deemed to be included
in this clause (1) whether or not such mortgage is created within such
180-day period; PROVIDED that in the case of any such construction or
improvement the mortgage shall not apply to any property theretofore
owned by the Company or any Principal Subsidiary, other than any
theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(2) mortgages on any property existing at the time of acquisition
thereof (including mortgages on any property acquired from a Person
which is consolidated with or merged with or into the Company or a
Subsidiary of the Company) and mortgages outstanding at the time any
Person becomes a Subsidiary of the Company that are not incurred in
connection with such entity becoming a Subsidiary of the Company;
50
<PAGE>
(3) mortgages in favor of the Company or any Principal
Subsidiary;
(4) mortgages in favor of the United States, any State, any
foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of constructing or
improving the property subject to such mortgages, including, without
limitation, mortgages to secure Debt of the pollution control or
industrial revenue bond type;
(5) mortgages on any Principal Property held, leased or used by
the Company or any Principal Subsidiary in connection with the
exploration for, development of, or production of (but not the
gathering, processing, transportation or marketing of) natural gas, oil
or other minerals; and
(6) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in any of the foregoing clauses (1), (2), (3), (4)
and (5); PROVIDED, HOWEVER, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the property
which secured the mortgage so extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the provisions of subsection (a) of this Section
1006, the Company and any Principal Subsidiary may issue, assume or guarantee
secured Debt, which would otherwise be subject to the foregoing restrictions, in
an aggregate amount which, together with all other such Debt does not exceed 15%
of Net Tangible Assets, as shown on a consolidated balance sheet, as of a date
not more than 90 days prior to the proposed transaction, prepared by the Company
in accordance with generally accepted accounting principles.
SECTION 1007. STATEMENT BY OFFICER AS TO DEFAULT.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 1007, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture. Such certificate
shall comply with Section 314(a)(4) of the Trust Indenture Act.
(b) The Company and the Subsidiary Guarantors shall, so long as any of
the Securities are outstanding, deliver to the Trustee forthwith upon any
Officer becoming aware of any Event of Default or event which, after notice or
lapse of time or both, would become an Event of Default, an Officers'
Certificate specifying such Event of Default or event and what action the
Company or any Subsidiary Guarantor proposes to take with respect thereto.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005, 1006 or Article Fifteen with
respect to the Securities of any series if before the time for such compliance
the Holders of 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.
51
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In the case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series of a specified tenor are to be redeemed)
the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series 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 and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
52
<PAGE>
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed, and that on and after the Redemption Date,
upon surrender of the Securities, new Securities of such series in
principal amount equal to the unredeemed part thereof will be issued,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and PROVIDED, FURTHER, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or
53
<PAGE>
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
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 or, in the case of Original Issue Discount Securities, the
Securities' yield to maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
54
<PAGE>
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 45 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1302 or Section 1303 applied to the Outstanding Securities
of any series upon compliance with the conditions set forth below in this
Article Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company and the Subsidiary Guarantors shall be
deemed to have been discharged from their respective obligations with respect to
the Outstanding Securities of any series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under the Securities of such
series and this Indenture insofar as the Securities of such series are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on the Securities of
such series when such payments are due, (B) the Company's and the Subsidiary
Guarantors' respective obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801,
1005 and 1006, (ii) the Subsidiary Guarantors shall be released from their
obligations with respect to the Securities of such series under Section 803, and
(iii) the occurrence of an event specified in Sections 501(3) or (5) shall not
be deemed to be an Event of Default on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), but the
remainder of this Indenture and such Securities shall be unaffected thereby. For
this purpose, such covenant defeasance means that the Company may omit to comply
55
<PAGE>
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or clause whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or clause or by reason of
any reference in any such Section or clause to any other provision herein or in
any such Section or clause 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 application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (and premium, if any) and each installment of interest on
the Securities and any coupons pertaining thereto on the Stated Maturity
of such principal (and premium, if any) or installment of interest in
accordance with the terms of this Indenture and of the Securities of
such series. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable United States
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
United States Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred.
(3) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize gain or loss for United States Federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject to
United States Federal income tax on the same
56
<PAGE>
amount, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, insofar as subsections 501(6) and (7) are
concerned, at any time during the period ending on the 121st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act with respect to any securities of the Company.
(6) 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.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
(8) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such Act or exempt from regulation
thereunder.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Securities of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities of such series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 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 the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
57
<PAGE>
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and the Subsidiary Guarantors' respective
obligations under this Indenture and the Securities (and the related Subsidiary
Guarantees) of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; PROVIDED, HOWEVER, that if the Company or any Subsidiary Guarantor
makes any payment of principal of or any premium or interest on any Security
following the reinstatement of its obligations, the Company or the Subsidiary
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of the Securities of such series to receive such payment from the money held by
the Trustee or the Paying Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF BEARER SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Bearer
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London or such other location as the Trustee shall determine. Notice
of every meeting of Holders of Bearer Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 120 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Bearer Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London or such
other location as the Trustee shall determine for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Bearer Securities a
Person shall (a) be a Holder of one or more Bearer Securities or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more Bearer
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Bearer Securities shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
58
<PAGE>
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Bearer Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the aggregate principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting duly
reconvened at which a quorum is present as aforesaid) may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Bearer Securities of that series; PROVIDED, HOWEVER, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in aggregate principal amount of the Outstanding Bearer
Securities of a series may be adopted at a meeting (or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid) by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Bearer Securities of that series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Bearer
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Bearer Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Bearer Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in Section
104 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Bearer Securities as provided in Section 1402(b), in
which case the Company or the Holders of Bearer Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented at the
meeting.
59
<PAGE>
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Bearer Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Bearer Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Bearer Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Bearer Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
GUARANTEES OF SECURITIES
SECTION 1501. UNCONDITIONAL GUARANTEES.
(a) For value received, the Subsidiary Guarantors, jointly and
severally, hereby fully, unconditionally and absolutely guarantee to the Holders
and to the Trustee the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and related coupons and all
other amounts due and payable under this Indenture and the Securities by the
Company when and as such principal, premium, if any, and interest and coupons
shall become due and payable, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise, according to the terms of the
Securities and this Indenture.
(b) Failing payment when due of any amount guaranteed pursuant to the
Subsidiary Guarantees, for whatever reason, each Subsidiary Guarantor will be
obligated to pay the same immediately. Each Subsidiary Guarantee hereunder is
intended to be a general, unsecured, senior obligation of each Subsidiary
Guarantor and will rank PARI PASSU in right of payment with all indebtedness of
each such Subsidiary Guarantor that is not, by its terms, expressly subordinated
in right of payment to the Subsidiary Guarantee of such Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, the Subsidiary Guarantees or
this Indenture, the absence of any action to enforce the same, any waiver or
consent
60
<PAGE>
by any Holder of the Securities with respect to any provisions hereof or
thereof, any release of any other Subsidiary Guarantor, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby
agrees that in the event of a default in payment of the principal of, or
premium, if any, or interest on the Securities, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise, legal
proceedings may be instituted by the Trustee on behalf of the Holders or,
subject to the Section 507, by the Holders, on the terms and conditions set
forth in this Indenture, directly against each of the Subsidiary Guarantors to
enforce the Subsidiary Guarantees without first proceeding against the Company.
(c) The obligations of each Subsidiary Guarantor under this Article
Fifteen shall be as aforesaid full, unconditional and absolute and shall not be
impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company or any
Subsidiary Guarantor contained in the Securities or this Indenture, (ii) any
impairment, modification, release or limitation of the liability of the Company,
any Subsidiary Guarantor or any of their estates in bankruptcy, or any remedy
for the enforcement thereof, resulting from the operation of any present or
future provision of any applicable bankruptcy law, as amended, or other statute
or from the decision of any court, (iii) the assertion or exercise by the
Company, any Subsidiary Guarantor or the Trustee of any rights or remedies under
the Securities or this Indenture or their delay in or failure to assert or
exercise any such rights or remedies, (iv) the assignment or the purported
assignment of any property as security for the Securities, including all or any
part of the rights of the Company or any Subsidiary Guarantor under this
Indenture, (v) the extension of the time for payment by the Company or any
Subsidiary Guarantor of any payments or other sums or any part thereof owing or
payable under any of the terms and provisions of the Securities or this
Indenture or of the time for performance by the Company or any Subsidiary
Guarantor of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification
or amendment (whether material or otherwise) of any duty, agreement or
obligation of the Company or any Subsidiary Guarantor set forth in this
Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceeding affecting, the Company or any of the Subsidiary
Guarantors or any of their respective assets, or the disaffirmance of the
Securities, the Subsidiary Guarantees or this Indenture in any such proceeding,
(viii) the release or discharge of the Company or any Subsidiary Guarantor from
the performance or observance of any agreement, covenant, term or condition
contained in any of such instruments by operation of law, (ix) the
unenforceability of the Securities, the Subsidiary Guarantees or this Indenture
or (x) any other circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor.
(d) The Subsidiary Guarantors and the Company each hereby (i) waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of the merger, insolvency or bankruptcy of the Company or a Subsidiary
Guarantor, and all demands whatsoever, (ii) acknowledges that any agreement,
instrument or document evidencing the Subsidiary Guarantees may be transferred
and that the benefit of its obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing the Subsidiary Guarantees
without notice to them and (iii) covenants that its Subsidiary Guarantee will
not be discharged except by complete performance of the Subsidiary Guarantees.
Each Subsidiary Guarantor and the Company further agrees that if at any time all
or any part of any payment theretofore applied by any Person to any Subsidiary
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
the Company or any Subsidiary Guarantor, such Subsidiary Guarantee shall, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Subsidiary
Guarantees shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
61
<PAGE>
(e) Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Company in respect of any amounts paid by
such Subsidiary Guarantor pursuant to the provisions of this Indenture,
PROVIDED, HOWEVER, that no Subsidiary Guarantor shall be entitled to enforce or
to receive any payments arising out of, or based upon, such right of subrogation
until all of the Securities and the Subsidiary Guarantees shall have been paid
in full or discharged.
(f) A director, officer, employee or stockholder, as such, of any
Subsidiary Guarantor shall not have any liability for any obligations of such
Subsidiary Guarantor under this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation.
SECTION 1502. LIMITATION OF SUBSIDIARY GUARANTORS' LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of any federal, state or
foreign law. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to Section 1503, result in the obligations
of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal, state or foreign
law.
The Holders and Warren NGL hereby agree that the liability of Warren NGL
under its full and unconditional Subsidiary Guarantee shall not at any time
exceed an amount equal to the maximum amount that Warren NGL can guarantee
without violating the terms and provisions of or causing a default under the
Indenture dated September 9, 1993 between Warren NGL (formerly known as Trident
NGL, Inc.) and Ameritrust Texas National Association, as Trustee, relating to
$65,000,000 in Senior Subordinated Notes due 2001 or the Indenture dated April
15, 1993 between Warren NGL (formerly known as Trident NGL, Inc.) and the First
National Bank of Boston, as Trustee, for $105,000,000 Subordinated Notes due
2003.
SECTION 1503. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, INTER SE, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Company's obligations with
respect to the Securities or any other Subsidiary Guarantor's obligations with
respect to its Subsidiary Guarantee.
SECTION 1504. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
To further evidence the Subsidiary Guarantees set forth in Section 1501,
each Subsidiary Guarantor hereby agrees that a notation relating to such
Subsidiary Guarantees shall be endorsed on each Security authenticated and
delivered by the Trustee in the form provided for in Section 205 and executed on
behalf of the Subsidiary Guarantors by either manual or facsimile signature by
an authorized officer of each Subsidiary Guarantor.
Each of the Subsidiary Guarantors hereby agrees that its Subsidiary
Guarantee set forth in Section 1501 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation relating to
such Subsidiary Guarantee.
62
<PAGE>
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Subsidiary Guarantee
of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 1505. ADDITION OF SECONDARY SUBSIDIARY GUARANTORS.
(a) If any Subsidiary of the Company (excluding in all cases NGC
Storage, HUB Services and NGC Anadarko) guarantees or becomes primarily
obligated with respect to any Funded Indebtedness of the Company other than the
Securities at any time subsequent to the Issue Date (including, without
limitation, following any release of such Subsidiary pursuant to Section 1506
from any Subsidiary Guarantee previously provided by it under this Article
Fifteen), then the Company shall (i) cause the Securities to be equally and
ratably guaranteed by such Subsidiary, but only to the extent that the
Securities are not already guaranteed by such Subsidiary on reasonably
comparable terms and (ii) cause such Subsidiary to execute and deliver a
supplemental indenture evidencing its provision of a Subsidiary Guarantee in
accordance with clause (b) below.
(b) Any Person that was not a Subsidiary Guarantor on the Issue Date may
become a Subsidiary Guarantor, whether or not required to do so by Section
1505(a), by executing and delivering to the Trustee (i) a supplemental indenture
in form and substance satisfactory to the Trustee, which subjects such Person to
the provisions (including the representations and warranties) of this Indenture
as a Subsidiary Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles) as may be acceptable to
the Trustee in its discretion and provided that no opinion need be rendered
concerning the enforceability of the Subsidiary Guarantee.
SECTION 1506. RELEASE OF SUBSIDIARY GUARANTEE.
Notwithstanding anything to the contrary in this Article Fifteen, in the
event that any Secondary Subsidiary Guarantor shall no longer be a guarantor of
or primary obligor under any Funded Indebtedness of the Company other than the
Securities, and so long as no Event of Default shall have occurred or be
continuing, such Secondary Subsidiary Guarantor, upon the Trustee's receipt of
an Officers' Certificate to the foregoing effect, shall be deemed to be released
from all of its obligations under this Indenture and the Subsidiary Guarantee of
such Secondary Subsidiary Guarantor shall be of no further force or effect.
Following the receipt by the Trustee of any such Officers' Certificate, the
Company shall cause this Indenture to be amended as provided in Section 901
hereof; PROVIDED, HOWEVER, that the failure to so amend this Indenture shall not
affect the validity of the termination of the Subsidiary Guarantee of such
Secondary Subsidiary Guarantor.
SECTION 1507. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
Each Subsidiary Guarantor that is not organized under the laws of the
United States (or any state thereof or the District of Columbia) (each a
"Non-U.S. Guarantor") hereby appoints the principal office of CT Corporation
System in The City of New York which, on the date hereof, is located at 1633
Broadway, New York, New York 10019, as the authorized agent thereof (the
"Authorized Agent") upon whom process may be served in any action, suit or
proceeding arising out of or based on this Indenture or the Securities which may
be instituted in the Supreme Court of the State of New York or the United States
District Court for the Southern District of New York, in either case in The
Borough of Manhattan, The City of New York, by the Holder of any Security, and
each Non-U.S. Guarantor hereby waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding and expressly and
irrevocably accepts and submits, for the benefit of the Holders from time to
time of the Securities, to the nonexclusive jurisdiction of any such court in
respect
63
<PAGE>
of any such action, suit or proceeding, for itself and with respect to its
properties, revenues and assets. Such appointment shall be irrevocable unless
and until the appointment of a successor authorized agent for such purpose, and
such successor's acceptance of such appointment, shall have occurred. Each
Non-U.S. Guarantor agrees to take any and all actions, including the filing of
any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent with respect to any such action shall be deemed, in every
respect, effective service of process upon any such Non-U.S. Guarantor.
Notwithstanding the foregoing, any action against any Non-U.S. Guarantor arising
out of or based on any Security may also be instituted by the Holder of such
Security in any court in the jurisdiction of organization of such Non-U.S.
Guarantor and such Non-U.S. Guarantor expressly accepts the jurisdiction of any
such court in any such action. The Company shall require the Authorized Agent to
agree in writing to accept the foregoing appointment as agent for service of
process.
SECTION 1508. WAIVER OF IMMUNITY.
To the extent that any Non-U.S. Guarantor or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Indenture or the
Securities, such Non-U.S. Guarantor, to the maximum extent permitted by law,
hereby irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
SECTION 1509. JUDGMENT CURRENCY.
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each Holder
against any loss incurred by it as a result of any judgment or order being given
or made and expressed and paid in a currency (the "Judgment Currency") other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Trustee or such Holder on
the date of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the
Trustee or such Holder. The foregoing indemnity shall constitute a separate and
independent obligation of each Non-U.S. Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
SECTION 1510. RIGHT OF SUBROGATION.
Each Subsidiary Guarantor waives its respective right of subrogation
that such Subsidiary Guarantor might now have or hereafter acquire against the
Holders of the Securities that arise from the existence or performance of such
Subsidiary Guarantor's obligations under its respective Subsidiary Guarantee
until the Securities have been paid in full.
----------------------------
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.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
COMPANY
NGC CORPORATION
By _____________________________
H. Keith Kaelber
Senior Vice President
SUBSIDIARY GUARANTORS
NATURAL GAS CLEARINGHOUSE
By: NGC Corporation, its general partner
WARREN NGL, INC.
WARREN ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Warren Energy, Inc., its general partner
WARREN GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
NGC UK LIMITED
NGC CANADA, INC.
NGC FUTURES, INC.
WARREN GAS MARKETING, INC.
WARREN NGL PIPELINE COMPANY
WARREN INTRASTATE GAS SUPPLY, INC.
KANSAS GAS SUPPLY CORPORATION
WARREN PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Warren Petroleum G.P., Inc., its general
partner WTLPS, INC.
Electric Clearinghouse, Inc.
By _____________________________
H. Keith Kaelber
Senior Vice President
WPC LP, INC.
By
H. Keith Kaelber
ecaac
Acf, and except as set forth below, the above-captioned Securities
held by you for our account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) are
owned by United States person(s) that are (A) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) United States person(s) who acquired Securities through
the foreign branches of the United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States financial
institution hereby agrees, on its own behalf or through its agent, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities
is a United States or foreign financial institution described in clause (iii)
above (whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, the
Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Securities in transactions which did not require
registration under the Act.
As used herein, "United States" or "U.S." means the United States
(including the States and District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
[Signature Page - 1]
<PAGE>
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: ______________, 199__.
NAME OF PERSON MAKING CERTIFICATION
By: _____________________________________
- -------------------------------
* To be dated no earlier than the Certification Date.
[Signature Page - 2]
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE
EURO-CLEAR OPERATOR OR CEDEL S.A.
NGC CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of September 26, 1996, among
NGC Corporation, the Subsidiary Guarantors named therein and The First National
Bank of Chicago as of the date hereof, [ ] principal amount of the
above-captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that are (A) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (A) or (B), each such United States financial institution
has agreed, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then
this is also to certify with respect to such principal amount of Securities set
forth above that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organizations
entitled to a portion of such principal amount, certifications with respect to
such portion, substantially to the effect set forth in the Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
B-1
<PAGE>
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: _______________, 199__.
(dated the Exchange Date or the Interest Payment Date)
[Morgan Guaranty Trust Company of New
York, as operator of the Euro-clear
System]
or
[CEDEL S.A.]
By: ____________________________________
B-2
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated March 15, 1996
included in NGC Corporation's Annual Report on Form 10-K/A for the year ended
December 31, 1995, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
October 3, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (No. 333-12987) of
NGC Corporation of our report on Accord Energy Limited dated March 14, 1996,
which appears on pages 1 - 18 of Item 8 of NGC Corporation's 1995 Annual Report
on Form 10-K/A. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ PRICE WATERHOUSE
PRICE WATERHOUSE
CHARTERED ACCOUNTANTS AND REGISTERED AUDITORS
London, England
October 4, 1996
EXHIBIT 24.2
CERTIFIED RESOLUTION
The undersigned hereby certify that the following Resolution was duly
adopted by Unanimous Written Consent by the Board of Directors of each of the
following subsidiaries of NGC Corporation: Warren NGL, Inc.; Warren Petroleum
G.P., Inc., general partner of Warren Petroleum Company, Limited Partnership;
Warren Energy, Inc., general partner of Warren Energy Resources, Limited
Partnership; Warren Gas Liquids, Inc.; NGC Oil Trading and Transportation, Inc.;
Warren Gas Marketing, Inc.; Warren NGL Pipeline Company; Kansas Gas Supply
Corporation; Warren Intrastate Gas Supply, Inc.; NGC UK Limited; NGC Canada,
Inc.; WTLPS, Inc.; WPC LP, Inc.; NGC Futures, Inc.; and Electric Clearinghouse,
Inc.:
"IT IS FURTHER RESOLVED, that H. Keith Kaelber, Kenneth E.
Randolph and Lisa Q. Metts, and each of them are hereby appointed
as attorneys-in-fact and agents, with full power of substitution
and resubstitution, to sign any and all amendments (including
post-effective amendments) to the Registration Statement in the
name of the President of the Company, on behalf of the Company as
Registrant, and to file the same, with all exhibits thereto and
all other docents in connection therewith, with the Commission;
and"
Warren NGL, Inc. NGC UK Limited
Warren Petroleum Company, Limited Partnership
By: Warren Petroleum G.P., Inc.
Warren Energy Resources, Limited Partnership By: /s/ LISA Q. METTS
By: Warren Energy, Inc. Lisa Q. Metts,
Warren Gas Liquids, Inc. Secretary
NGC Oil Trading and Transportation, Inc.
Warren Gas Marketing, Inc.
Warren NGL Pipeline Company WPC LP, Inc.
Kansas Gas Supply Corporation
Warren Intrastate Gas Supply, Inc.
NGC Canada, Inc. By: /s/ CHARLES H. BROWNMAN
WTLPS, Inc. Charles H. Brownman,
NGC Futures, Inc. Secretary
Electric Clearinghouse, Inc.
By: /s/ KENNETH E. RANDOLPH
Kenneth E. Randolph,
Secretary
