<PAGE> 1
As filed with the Securities and Exchange Commission on May 24, 1999
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
LOUIS DREYFUS NATURAL GAS CORP. OKLAHOMA 73-1098614
LOUIS DREYFUS NATURAL GAS TRUST I DELAWARE TO BE APPLIED FOR
LOUIS DREYFUS NATURAL GAS TRUST II DELAWARE TO BE APPLIED FOR
(Exact name of registrants as (State or other (I.R.S. Employer
specified in their charters) jurisdiction of Identification Nos.)
incorporation or
organization)
14000 QUAIL SPRINGS PARKWAY, SUITE 600
OKLAHOMA CITY, OKLAHOMA 73134-2600
405/749-1300
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------------------
JEFFREY A. BONNEY Copies To:
LOUIS DREYFUS NATURAL GAS CORP. MICHAEL M. STEWART, ESQ.
14000 QUAIL SPRINGS PARKWAY, SUITE 600 CROWE & DUNLEVY
OKLAHOMA CITY, OKLAHOMA 73134-2600 1800 MID-AMERICA TOWER
405/749-1300 OKLAHOMA CITY, OKLAHOMA 73102-8273
(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 the Registrants.
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
<PAGE> 2
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<PAGE> 3
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH AMOUNT MAXIMUM AGGREGATE
CLASS OF TO BE OFFERING OFFERING AMOUNT OF
SECURITIES TO REGISTERED PRICE PRICE REGISTRATION
BE REGISTERED (1)(2) (1)(2) (1)(2) FEE
- ---------------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Louis Dreyfus Natural
Gas Corp. Common
Stock, $.01 par
value (3)
Louis Dreyfus Natural
Gas Corp. Preferred
Stock, $.01 par
value (3)
Louis Dreyfus Natural
Gas Corp. Debt
Securities
Louis Dreyfus Natural
Gas Trust I
Preferred Securities
(4)
Louis Dreyfus Natural
Gas Trust II
Preferred Securities
(4)
Louis Dreyfus Natural
Gas Corp. Guarantees
of Preferred
Securities of Louis
Dreyfus Natural
Gas Trust I and II
(5)
------------ ------------ ------------ ------------
Total $400,000,000 $111,200 (6)
============ ============ ============ ============
- ------------------------
</TABLE>
(1) Such indeterminate number or amount of Common Stock, Preferred Stock,
Debt Securities and Guarantees of Louis Dreyfus Natural Gas Corp. (the
"Company") and Preferred Securities of Louis Dreyfus Natural Gas Trust I
and II (the "Trusts") as may from time to time be issued at indeterminate
prices. Debt Securities of the Company may be issued and sold to the
Trusts, in which event such Debt Securities may later be distributed to
the holders of Preferred Securities of the Trusts for no further
consideration upon a dissolution of any such Trust and the distribution
of the assets thereof.
<PAGE> 4
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the
securities registered hereby will not exceed $400,000,000.
(3) Also includes such indeterminate number of shares of Common Stock and
Preferred Stock as may be issued upon conversion of or exchange for any
Debt Securities, Preferred Stock or Preferred Securities registered
hereunder that provide for conversion or exchange into other securities.
No separate consideration will be received for the Common Stock or
Preferred Stock issuable upon conversion of or in exchange for Debt
Securities, Preferred Stock or Preferred Securities.
(4) Each Preferred Security of Louis Dreyfus Natural Gas Trust I and II
represents a preferred undivided beneficial ownership interest in the
assets of Louis Dreyfus Natural Gas Trust I and II, respectively.
(5) No separate consideration will be received for the Guarantees of the
Company.
(6) On February 7, 1997, the Company filed Registration Statement No. 333-
21321 relating to a proposed offering of Common Stock and on February
18, 1997 and March 19, 1997, respectively, filed Amendment No. 1 and
Amendment No. 2 thereto. Such proposed offering was not completed due
to changes in market conditions and the Registration Statement was not
declared effective. The Company paid a fee of $33,062.50 in connection
with such initial filing and files this Amendment No. 3 relating to the
securities described above in order to carry forward the fee previously
paid resulting in additional fee payments due in connection with this
Amendment No. 3 of $78,137.50.
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
Section 8(a), may determine.
==============================================================================
<PAGE> 5
Subject to Completion, Dated May 24, 1999
PROSPECTUS
$400,000,000
LOUIS DREYFUS NATURAL GAS CORP.
LOUIS DREYFUS NATURAL GAS TRUST I
LOUIS DREYFUS NATURAL GAS TRUST II
The information in this LOUIS DREYFUS NATURAL GAS CORP.
prospectus is not We may offer and sell, in one or more offerings:
complete and may be - common stock
changed. We may not - preferred stock
sell these securities - debt securities
until the registration The Common Stock of Louis Dreyfus Natural Gas
statement filed with Corp. trades on the New York Stock Exchange
the Securities and under the symbol "LD".
Exchange Commission is
effective. This THE TRUSTS
prospectus is not an The Trusts are each Delaware business trusts that
offer to sell these may offer and sell preferred securities in one or
securities and it is more offerings. Each Trust will use all of the
not soliciting an offer proceeds from the sale of its preferred securities
to buy these securities to buy subordinated debt securities of Louis
in any state where the Dreyfus Natural Gas Corp. The Trust will receive
offer or sale is not cash payments from the subordinated debt
permitted. securities, which it will distribute to the
WE MAY OFFER AND SELL, holders of its preferred and common securities.
IN ONE OR MORE Louis Dreyfus Natural Gas Corp. will own all of
OFFERINGS, CERTAIN DEBT the common securities of the Trusts, and will
AND EQUITY SECURITIES. unconditionally guarantee the Trusts' obligation
THE TOTAL OFFERING to distribute cash to the holder of trust
PRICE OF THESE preferred securities, but only to the extent the
SECURITIES, IN THE Trust has funds available to make those payments
AGGREGATE, WILL NOT and has not made the payments.
EXCEED $400,000,000. WE
WILL PROVIDE THE
SPECIFIC TERMS AND THE
INITIAL PUBLIC OFFERING
PRICE FOR EACH OFFERING
IN A SUPPLEMENT TO THIS
PROSPECTUS. YOU SHOULD
CAREFULLY READ THIS
PROSPECTUS AND THE
SUPPLEMENT BEFORE YOU
DECIDE TO INVEST. This
prospectus may not be
used to sell securities
unless accompanied by a
prospectus supplement.
--------------------------------
<PAGE> 6
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
--------------------------------
THE DATE OF THIS PROSPECTUS IS , 1999.
<PAGE> 7
TABLE OF CONTENTS
Page
About this Prospectus . . .. . . . . . . . . . . . . . . . . . . . . 7
Certain Forward-Looking Statements . . . . . . . . . . . . . . . . . 8
Louis Dreyfus Natural Gas Corp.. . . . . . . . . . . . . . . . . . . 8
The Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . . . . 10
Description of the Securities We May Offer . . . . . . . . . . . . . 11
Description of Common Stock. . . . . . . . . . . . . . . . . . . . . 13
Description of Preferred Stock . . . . . . . . . . . . . . . . . . . 14
Description of Debt Securities . . . . . . . . . . . . . . . . . . . 16
Description of the Trust Preferred Securities . . . . . . . . . . . 29
Description of the Trust Preferred Securities Guarantee. . . . . . . 36
Relationship among the Trust Preferred Securities, the Trust
Preferred Securities Guarantee and the Subordinated Debt
Securities Held by the Trust. . . . . . . . . . . . . . . . . . . 39
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 40
Validity of Offered Securities . . . . . . . . . . . . . . . . . . . 42
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Where You Can Find More Information. . . . . . . . . . . . . . . . . 43
Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . 43
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we filed
with the Securities and Exchange Commission ("SEC"). By using a shelf
registration statement, we may sell, from time to time, in one or more
offerings, any combination of the securities described in this prospectus. The
total dollar amount of the securities we may sell through these offerings will
not exceed $400,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that contains more specific information about the terms of those
securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
This prospectus does not contain separate financial statements for the
Trusts. We do not believe these financial statements would be useful since the
Trusts will not have any independent function other than to issue common and
preferred securities and to purchase our subordinated debt securities. We will
provide a full, unconditional guarantee of each Trust's obligations under its
common and preferred securities. Each Trust is our direct or indirect wholly-
owned subsidiary, and we file consolidated financial information under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
You should rely only on the information contained or incorporated by
reference in this prospectus and the prospectus supplement. We have not, and
the underwriters have not, authorized any other person to provide you with
different information. If anyone provides you with different information, you
<PAGE> 8
should not rely on it. We will not, and the underwriters will not, make an
offer to sell these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in this
prospectus, as well as information we previously filed with the SEC and
incorporated by reference, is accurate as of the date on the front cover of
this prospectus only. Our business, financial condition, results of operations
and prospects may have changed since that date.
CERTAIN FORWARD-LOOKING STATEMENTS
All statements made or incorporated by reference in this prospectus other
than purely historical information are "forward-looking statements" within the
meaning of the federal securities laws. These statements reflect our current
expectations and are based on our historical operating trends, proved reserve
and fixed-price contract positions and other currently available information.
Forward-looking statements include statements regarding our future drilling
plans and objectives and related exploration and development budgets and
number and location of planned wells and statements regarding the quality of
our properties and potential reserve and production levels. These statements
assume that no significant changes will occur in the operating environment for
our oil and gas properties and that there will be no material acquisitions or
divestitures except as otherwise described.
The forward-looking statements are subject to all the risks and
uncertainties incident to the acquisition, exploration, development and
marketing of oil and gas reserves. Some of these risks are commodity price,
counterparty, environmental, drilling, reserves, operations and production
risks. Certain of these risks are described in the documents "incorporated by
reference" which you can obtain as described under "Where You Can Find More
Information." We may also make material acquisitions or divestitures, modify
our fixed-price contract positions or enter into financing transactions. None
of these can be predicted with certainty and are not taken into consideration
in the forward-looking statements.
Statements concerning fixed-price contract, interest rate swap and other
financial instrument fair values and their estimated contribution to our
future results of operations are based upon market information as of a
specific date. This market information is often a function of significant
judgment and estimation. Further, market prices for oil and gas and market
money rates are subject to significant volatility.
For all of the these reasons, our actual results may vary materially from
the forward-looking statements and there is no assurance that the assumptions
we have used are necessarily the most likely. We will not update any forward-
looking statements to reflect events or circumstances occurring after the date
the statement is made.
LOUIS DREYFUS NATURAL GAS CORP.
Louis Dreyfus Natural Gas Corp. is one of the largest independent natural
gas companies engaged in the development, exploration, acquisition, production
and marketing of natural gas and crude oil in the United States.
The address of our principal executive offices is 14000 Quail Springs
<PAGE> 9
Parkway, Suite 600, Oklahoma City, OK 73134-2600, and our telephone number is
(405) 749-1300. All references to "we," "us," "the Company" or "Louis Dreyfus
Natural Gas" in this prospectus mean, unless the context otherwise indicates,
Louis Dreyfus Natural Gas Corp. and its consolidated subsidiaries.
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware
law pursuant to (i) a separate declaration of trust executed by the Company,
as depositor, and the trustees (described below) for the trust and (ii) the
filing of a certificate of trust with the Delaware Secretary of State. Each
Trust's declaration will be amended and restated substantially in the form
filed as an exhibit to the registration statement as of the date the
securities of that Trust are initially issued. Each amended declaration will
be qualified as an indenture under the Trust Indenture Act of 1939.
Each Trust exists solely for the purposes of:
- issuing preferred securities and common securities representing
undivided beneficial interests in the assets of that Trust;
- investing the proceeds of those securities issuances in junior
subordinated debt securities of the Company; and
- engaging only in other incidental activities.
The rights of the holders of the trust securities, including economic
rights, rights to information and voting rights, are set forth in the amended
declaration of each Trust, the Delaware Business Trust Act and the Trust
Indenture Act.
The Company will own, directly or indirectly, all of the common
securities of each Trust, which will have an aggregate liquidation amount
equal to 3% of the total capital of each Trust . The common securities will
generally rank equally in right of payment with the preferred securities, and
payments on both will be made pro rata. However, upon an event of default
under the Trust's amended declaration, the rights of the holders of the common
securities to payment of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the preferred securities. The Company will pay all fees and expenses related
to the Trusts and the offering of trust securities.
Each Trust has a term of approximately 55 years, but may terminate
earlier as provided in its amended declaration. The Company, as holder of all
of the common securities, will be entitled to appoint, remove or replace any
of, or increase or reduce the number of, the trustees of each Trust. The
business and affairs of each Trust will be conducted by such trustees, and the
duties and obligations of the trustees will be governed by the amended
declaration of each Trust.
At least one of the trustees of each Trust will be a person who is an
employee or officer of, or otherwise affiliated with, the Company. These
persons are sometimes referred to herein as "regular" trustees. One trustee
of each Trust will be a financial institution which will be unaffiliated with
<PAGE> 10
the Company and which will act as property trustee and as indenture trustee
for purposes of the Trust Indenture Act pursuant to the terms of the amended
declaration and as may be further described in a prospectus supplement. The
property trustee will hold title to the junior subordinated debt securities
for the benefit of the holders of the trust securities. In addition, unless
the property trustee maintains a principal place of business in the State of
Delaware and otherwise meets the requirements of applicable laws, one trustee
of each Trust will be a legal entity having a principal place of business in,
or an individual resident of, the State of Delaware.
Unless otherwise indicated in a prospectus supplement, Wilmington Trust
Company will be the property trustee and the Delaware trustee. The address of
the principal office of Wilmington Trust Company in the State of Delaware is
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-
0001. The principal place of business of each Trust will be c/o Louis Dreyfus
Natural Gas Corp., 14000 Quail Springs Parkway, Suite 600, Oklahoma City, OK
73134-2600.
USE OF PROCEEDS
Unless we have indicated otherwise in the accompanying prospectus
supplement, we expect to use the net proceeds we receive from any offering of
these securities for our general corporate purposes, including working
capital, repayment or reduction of debt, capital expenditures, and
acquisitions of additional oil and gas properties. Each of the Trusts will use
the net proceeds from the sale of its preferred securities to purchase a
series of junior subordinated debt securities from the Company. We also expect
to use the net proceeds from the sale of those junior subordinated debt
securities for the purposes described in this section.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company for the periods indicated.
<TABLE>
<CAPTION>
Three Months
Year Ended December 31, Ended
--------------------------------------- March 31,
1994 1995 1996 1997 1998 1999
------- ------- ------- ------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges.... 1.9x 1.7x 2.1x -- -- --
- ----------------------
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges,
earnings represents net income before income taxes plus fixed charges, less
capitalized interest. Fixed charges consist of interest expense, including
amortization of debt discount and financing costs, capitalized interest and
the portion of rental expense which we believe is representative of the
interest component of rental expense. Earnings were insufficient to cover
<PAGE> 11
fixed charges by $28.3 million, $76.4 million and $6.5 million for the years
ended December 31, 1997 and 1998 and the three months ended March 31, 1999,
respectively.
DESCRIPTION OF THE SECURITIES WE MAY OFFER
GENERAL
The Company may issue, in one or more offerings:
- common stock, par value $.01 per share;
- preferred stock, par value $.01 per share; and
- debt securities, which may be senior or subordinated.
The Trusts may issue, from time to time, in one or more offerings, Trust
preferred securities that will be unconditionally guaranteed by the Company.
This prospectus contains a summary of the general terms of the various
securities that we or the Trusts may offer. The prospectus supplement relating
to any particular securities offered will describe the specific terms of the
securities, which may be in addition to or different from the general terms
summarized in this prospectus. The summary in this prospectus and in any
prospectus supplement does not describe every aspect of the securities and is
subject to and qualified in its entirety by reference to all applicable
provisions of the documents relating to the securities offered. These
documents are or will be filed as exhibits to or incorporated by reference in
the registration statement.
In addition, the prospectus supplement will set forth the terms of the
offering, the initial public offering price and net proceeds to the Company.
Where applicable, the prospectus supplement will also describe any material
United States federal income tax considerations relating to the securities
offered and indicate whether the securities offered are or will be listed on
any securities exchange.
BOOK-ENTRY SYSTEM
The Company or the Trusts may issue securities in the form of one or
more fully registered global securities. These will be deposited with, or on
behalf of, the Depository Trust Company ("DTC") and registered in the name of
its nominee. Except as described below, the global securities may be
transferred, in whole and not in part, only to DTC or to another nominee of
DTC.
DTC has advised the Company that it is:
- A limited-purpose trust company organized under the laws of the
state of New York;
- A member of the Federal Reserve System;
- A "clearing corporation" within the meaning of the New York
<PAGE> 12
Uniform Commercial Code; and
- A "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934.
DTC was created to hold securities for institutions that have accounts
with DTC ("Participants") and to facilitate the clearance and settlement of
securities transactions among its Participants through electronic book-entry
changes in Participants' accounts. Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) own DTC. Access to
DTC's book-entry system is also available to others that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly. DTC administers its book-entry system in accordance with its rules
and bylaws and legal requirements.
Upon issuance of a global security representing offered securities, DTC
will credit (on its book-entry registration and transfer system) the principal
amount to Participants' accounts. Ownership of beneficial interests in the
global security will be limited to Participants or to persons that hold
interests through Participants. Ownership of interests in the global security
will be shown on, and the transfer of those ownership interests will be
effected only through, records maintained by DTC (with respect to
Participants' interests) and the Participants (with respect to the owners of
beneficial interests in the global security). The laws of some jurisdictions
may require that certain purchasers of securities take physical delivery of
those securities in definitive form. These limits and laws may impair the
ability to transfer beneficial interests in a global security.
So long as DTC (or its nominee), is the registered holder and owner of a
global security, DTC (or its nominee) will be considered, for all purposes
under the applicable indenture, the sole owner and holder of the related
offered securities. Except as described below, owners of beneficial interests
in a global security will not:
- be entitled to have the offered securities registered in their
names; or
- receive or be entitled to receive physical delivery of certificated
offered securities in definitive form.
Each person owning a beneficial interest in a global security must rely
on DTC's procedures (and, if that person holds through a Participant, on the
Participant's procedures) to exercise any rights of a holder of offered
securities under the global security or any applicable indenture, or
otherwise. The indentures provide that DTC may grant proxies and otherwise
authorize Participants to take any action which it (as the holder of a global
security) is entitled to take under the indentures or the global security. We
understand that under existing industry practice, if the Company or a Trust
requests any action of holders or an owner of a beneficial interest in a
global security desires to take any action that DTC (as the holder of the
global security) is entitled to take, DTC would authorize the Participants to
take that action and the Participants would authorize their beneficial owners
to take the action or would otherwise act upon the instructions of their
<PAGE> 13
beneficial owners.
The Company or the Trusts will make payments with respect to securities
represented by a global security to DTC. We expect that DTC, upon receipt of
any payments, will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests. We also expect
that payments by Participants to owners of beneficial interests in a global
security held through them will be governed by standing instructions and
customary practices (as is the case with securities held for customers'
accounts in "street name") and will be the responsibility of the Participants.
None of the Company, the Trusts or any trustee will have any responsibility or
liability for:
- any aspect of the records relating to, or payments made on account
of, beneficial ownership interests in a global security for any
securities;
- maintaining, supervising, or reviewing any records relating to any
beneficial ownership interests;
- any other aspect of the relationship between DTC and its
Participants; or
- the relationship between the Participants and the owners of
beneficial interests in a global security.
Unless and until they are exchanged in whole or in part for certificated
securities in definitive form, the global securities may not be transferred
except as a whole by DTC to its nominee or by its nominee to DTC or another
nominee.
The securities of any series represented by a global security may be
exchanged for certificated securities in definitive form if:
- DTC notifies us that it is unwilling or unable to continue as
depositary for the global security or if at any time it ceases to
be a clearing agency registered under the Securities Exchange Act
of 1934;
- the Company decides at any time not to have the securities of that
series represented by a global security and so notifies DTC; or
- in the case of debt securities, an event of default has occurred
and is continuing with respect to the debt securities.
If there is such an exchange, we will issue certificated securities in
authorized denominations and registered in such names as DTC directs. Subject
to the foregoing, the global securities are not exchangeable, except for a
global security(ies) of the same aggregate denomination to be registered in
DTC's or its nominee's name.
DESCRIPTION OF COMMON STOCK
GENERAL
<PAGE> 14
The Company's authorized capital stock consists of 100,000,000 shares of
common stock, par value $.01 per share, and 10,000,000 shares of preferred
stock, par value $.01 per share. We describe the preferred stock under the
heading "Description of Preferred Stock" below.
This section summarizes the general terms of the common stock that we
may offer. The prospectus supplement relating to the common stock offered will
set forth the number of shares offered, the initial offering price and market
price, dividend information and any other relevant information. The summary in
this section and in the prospectus supplement does not describe every aspect
of the common stock and is subject to and qualified in its entirety by
reference to all the provisions of our Amended and Restated Certificate of
Incorporation ("Certificate of Incorporation") and Bylaws and the Oklahoma
General Corporation Act.
TERMS OF THE COMMON STOCK
As of March 31, 1999, there were 40,109,758 shares of common stock
issued and outstanding. All shares of common stock have equal rights to
participate in dividends and, in the event of liquidation, assets available
for distribution to stockholders, subject to any preference established with
respect to preferred stock. Each share of common stock entitles the holder to
one vote for such share held on all matters submitted to a vote of
stockholders. Voting rights for the election of directors are noncumulative.
Shares of common stock carry no conversion, preemptive or subscription rights,
and are not subject to redemption. All outstanding shares of common stock
are, and any shares of common stock issued upon conversion of any convertible
securities will be, fully paid and nonassessable. The Company may pay
dividends on the common stock when, as and if declared by the Board of
Directors. Dividends may be declared in the discretion of the Board of
Directors from funds legally available therefore, subject to restrictions
under agreements related to Company indebtedness.
TRANSFER AGENT AND REGISTRAR
The outstanding shares of common stock are listed on the New York Stock
Exchange and trade under the symbol "LD." The transfer agent and registrar of
the common stock is Chase Mellon Shareholder Services, L.L.C.
DESCRIPTION OF PREFERRED STOCK
GENERAL
This section summarizes the general terms of the preferred stock that we
may offer. The prospectus supplement relating to a particular series of
preferred stock offered will describe the specific terms of that series, which
may be in addition to or different from the general terms summarized in this
section. The summary in this section and in any prospectus supplement does not
describe every aspect of the preferred stock and is subject to and qualified
in its entirety by reference to all the provisions of our Certificate of
Incorporation, the Certificate of Designation relating to the applicable
series of preferred stock, and the Oklahoma General Corporation Act. The
Certificate of Designation will be filed as an exhibit to or incorporated by
reference in the registration statement.
<PAGE> 15
AUTHORITY OF THE BOARD TO ISSUE PREFERRED STOCK
The Certificate of Incorporation authorizes the issuance of 10,000,000
shares of preferred stock, par value of $.01 per share. On March 31, 1999,
there were no shares of preferred stock outstanding. Preferred stock may be
issued from time to time in one or more classes or series with such rights and
preferences, including voting, dividend and conversion rights and other terms,
as the Board of Directors may establish without any further authorization by
the stockholders.
The preferred stock that we may offer will be issued in one or more
classes or series. The prospectus supplement relating to the particular class
or series of preferred stock will describe the specific terms of the class or
series, including:
- the designation and stated value per share of such preferred stock
and the number of shares offered;
- the amount of liquidation preference per share;
- the initial public offering price at which such preferred stock will
be issued;
- the dividend rate (or method of calculation), the dates on which
dividends will be payable and the dates from which dividends shall
commence to cumulate, if any;
- any redemption or sinking fund provisions;
- any conversion or exchange rights; and
- any additional voting, dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations
and restrictions.
The holders of preferred stock will have no preemptive rights. Upon
issuance against full payment of the purchase price therefor, the preferred
stock will be fully paid and nonassessable. Unless otherwise provided in the
prospectus supplement relating to the particular class or series, the
preferred stock will have the rights described below.
DIVIDENDS
The preferred stock will be preferred over the common stock as to
payment of dividends. Before any dividends or distributions (other than
dividends or distributions payable in common stock) on the common stock shall
be declared and set apart for payment or paid, the holders of shares of each
series of preferred stock will be entitled to receive dividends when, as and
if declared by the Board of Directors. The Company will pay those dividends
either in cash, shares of common stock or preferred stock or otherwise, at the
rate and on the date or dates set forth in the prospectus supplement. With
respect to each series of preferred stock, the dividends on each share of the
series will be cumulative from the date of issue of the share unless some
other date is set forth in the prospectus supplement relating to the series.
<PAGE> 16
Accruals of dividends will not bear interest.
LIQUIDATION
The preferred stock will be preferred over the common stock as to asset
distributions so that the holders of each series of preferred stock will be
entitled to be paid, upon the Company's voluntary or involuntary liquidation,
dissolution or winding up and before any distribution is made to the holders
of common stock, the amount set forth in the applicable prospectus supplement.
However, in this case the holders of preferred stock will not be entitled to
any other or further payment. If upon any liquidation, dissolution or winding
up the Company's net assets are insufficient to permit the payment in full of
the respective amounts to which the holders of all outstanding preferred stock
are entitled, the Company's entire remaining net assets will be distributed
among the holders of each series of preferred stock in amounts proportional to
the full amounts to which the holders of each series are entitled.
REDEMPTION OR CONVERSION
The shares of any series of preferred stock will be redeemable or will
be convertible into shares of common stock or any other series of preferred
stock to the extent set forth in the prospectus supplement relating to the
series.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The debt securities will be unsecured general obligations of the Company
and may include:
- senior debt securities, to be issued under the Senior Indenture; or
- subordinated debt securities, to be issued under the Subordinated
Indenture.
The Company may also issue junior subordinated debt securities under the
Junior Subordinated Indenture to one or more of the Trusts which will be
purchased by the Trusts using proceeds from issuances of trust preferred
securities.
This section summarizes the general terms of the debt securities we may
offer. The prospectus supplement relating to any particular debt securities
offered will indicate whether the debt securities are senior debt securities,
subordinated debt securities or junior subordinated debt securities, and will
describe the specific terms of the debt securities, which may be in addition
to or different from the general terms summarized in this section. The summary
in this section and in any prospectus supplement does not describe every
aspect of the Senior Indenture, Subordinated Indenture or Junior Subordinated
Indenture or the debt securities, and is subject to and qualified in its
entirety by reference to all the provisions of the applicable indenture and
the debt securities. The forms of the Senior Indenture, Subordinated Indenture
and Junior Subordinated Indenture and the forms of the debt securities are or
will be filed as exhibits to or incorporated by reference in the registration
<PAGE> 17
statement. Certain defined terms in the Indentures are capitalized herein.
The Indentures do not limit the amount of debt securities which may be
issued under the Indentures and provide that debt securities may be issued in
principal amounts which may be authorized from time to time. The debt
securities may be issued from time to time in one or more series. Unless
otherwise specified in the prospectus supplement, the senior debt securities
will be unsecured and will rank equally with all other unsecured and
unsubordinated indebtedness of the Company. The subordinated debt securities
and the junior subordinated debt securities will be subordinated in right of
payment to the prior payment in full of the Senior Indebtedness of the
Company, as described below under "Provisions Applicable to Subordinated Debt
Securities - Subordination," "Provisions Applicable to Junior Subordinated
Debt Securities - Subordination of Junior Subordinated Debt Securities," and
in the applicable prospectus supplement.
Each prospectus supplement will describe the following terms of the
offered debt securities:
- The title;
- Any limit on the aggregate principal amount;
- Whether the offered debt securities will be issued initially in
the form of a temporary global security or issued in the form of a
permanent global security; the terms and conditions, if any, upon
which the global security may be exchanged in whole or in part for
other definitive debt securities; and the depositary for the
global security;
- The date(s) on which the principal and any premium is payable and
the method of determination thereof;
- The interest rate(s), if any, and the method of determination
thereof and the date(s) from which the interest accrues;
- The dates on which the interest, if any, is payable and the regular
record dates for the interest payment dates;
- The Company's right, if any, to defer payment of interest and the
maximum length of any deferral period;
- The place(s) where principal and any premium and interest is
payable;
- Whether the offered debt securities are redeemable at our option
and the redemption price(s) and other redemption terms and
conditions;
- Whether we are obligated to redeem or purchase the offered debt
securities according to any sinking fund or similar provision or
at the holder's option and the price(s), period(s), and terms and
conditions of that redemption or purchase obligation;
<PAGE> 18
- If other than denominations of $1,000 and any integral multiple of
$1,000, the denominations in which offered debt securities of the
series will be issuable;
- If other than United States Dollars, the currency or currencies of
payment of principal and any premium and interest;
- If payments are based on an index, the manner in which the amount
of principal payments and any premium and interest is to be
determined;
- If other than the full principal amount, the portion of the
principal amount payable if the maturity of the offered debt
securities is accelerated;
- Whether the provisions relating to satisfaction, discharge, and
defeasance described below apply and any additional means of
satisfaction, discharge and defeasance;
- Whether the offered debt securities are subordinated debt securities
or junior subordinated securities and the terms of subordination
including any modification to the subordination provisions described
below;
- Any deletions or modifications to the Events of Default described
below;
- If applicable, the terms of any right to convert or exchange the
offered debt securities into common stock or other securities of
the Company;
- Any authenticating or paying agents, registrars, conversion agents
or any other agents with respect to the offered debt securities;
and
- Any other terms.
Debt securities may be issued and sold at a substantial discount below
their principal amount. If applicable, the prospectus supplement will describe
any special United States federal income tax consequences and other
considerations which apply to debt securities issued at a discount or to any
offered debt securities denominated or payable in a foreign currency or
currency unit.
PROVISIONS APPLICABLE TO ALL DEBT SECURITIES
EVENTS OF DEFAULT
Unless otherwise provided in the prospectus supplement with respect to
any series of debt securities, the following are Events of Default under each
Indenture with respect to the debt securities of such series issued under such
Indenture:
- failure to pay principal of or premium, if any, on any debt security
<PAGE> 19
of such series when due;
- failure to pay interest, if any, on any debt security of such series
when due, continued for 60 days;
- failure to deposit any mandatory sinking fund payment, when due, in
respect of any debt security of such series, continued for 60 days;
- failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture for the
benefit of a series of debt securities other than such series),
continued for 90 days after written notice as provided in the
Indenture;
- certain events of bankruptcy, insolvency or reorganization; and
- any other Event of Default as may be specified with respect to debt
securities of such series.
If an Event of Default with respect to any outstanding series of debt
securities occurs and is continuing, either the trustee or the holders of at
least 25% in principal amount of the outstanding debt securities of such
series (in the case of an Event of Default described above relating to payment
of principal, premium and interest and other Events of Default specified with
respect to such series) or at least 25% in principal amount of all outstanding
debt securities under the applicable Indenture (in the case of other Events of
Default) may declare the principal amount of all the debt securities of the
applicable series (or of all outstanding debt securities under the applicable
Indenture, as the case may be) to be due and payable immediately. At any time
after a declaration of acceleration has been made, but before a judgment has
been obtained, the holders of a majority in principal amount of the
outstanding debt securities of such series (or of all outstanding debt
securities under the applicable Indenture, as the case may be) may, under
certain circumstances, rescind and annul such acceleration. Depending on the
terms of other indebtedness of the Company outstanding from time to time, an
Event of Default under an Indenture may give rise to cross defaults on such
other indebtedness of the Company.
Each Indenture provides that the trustee will, within 90 days after the
occurrence of a default in respect of any series of debt securities, give to
the holders of the debt securities of such series notice of all uncured and
unwaived defaults known to it; provided, however, that except in the case of a
default in the payment of the principal of or premium or interest, if any, on,
or any sinking fund installment with respect to, any debt securities of such
series, the trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
holders of the debt securities of such series; and provided further, however,
that such notice shall not be given until at least 60 days after the
occurrence of a default in the performance, or breach, of any covenant or
warranty of the Company under such Indenture other than for the payment of the
principal of or premium or interest, if any, on, or any sinking fund
installment with respect to, any debt securities of such series. For the
purpose of this provision, "default" with respect to debt securities of any
series means any event which is, or after notice or lapse of time, or both,
<PAGE> 20
would become, an Event of Default with respect to the debt securities of such
series.
The holders of a majority in principal amount of the outstanding debt
securities of any series (or, in certain cases, all outstanding debt
securities under the applicable Indenture) have the right, subject to certain
limitations to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debt securities of such series
(or of all outstanding debt securities under the applicable Indenture). Each
Indenture provides that in case an Event of Default shall occur and be
continuing, the trustee shall exercise such of its rights and powers under the
applicable Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. Subject to such provisions, the trustee will be
under no obligation to exercise any of its rights or powers under any
applicable Indenture at the request of any of the holders of the debt
securities unless they shall have offered to the trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request.
The holders of a majority in principal amount of the outstanding debt
securities of any series (or, in certain cases, all outstanding debt
securities under the applicable Indenture) may on behalf of the holders of all
debt securities of such series (or of all outstanding debt securities under
the applicable Indenture) waive any past default under the applicable
Indenture, except a default in the payment of the principal of or premium or
interest, if any, on any debt security or in respect of a provision which
under the applicable Indenture cannot be modified or amended without the
consent of the holder of each outstanding debt security affected. The holders
of a majority in principal amount of the outstanding debt securities affected
thereby may on behalf of the holders of all such debt securities waive
compliance by the Company with certain restrictive provisions of the
Indentures.
The Company is required to furnish to the trustee annually a statement
as to the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance.
MODIFICATION
Modifications and amendments of each Indenture may be made by the
Company and the trustee with the consent of the holders of a majority in
principal amount of the outstanding debt securities under the applicable
Indenture affected thereby; provided, however, that no such modification or
amendment may, without the consent of the holder of each outstanding debt
security affected thereby:
- change the stated maturity date of the principal of or any
installment of interest, if any, on any debt security;
- reduce the principal amount of or the premium or interest, if any,
on any debt security;
<PAGE> 21
- change the place or currency, currencies, or currency unit or units
or payment of principal of or premium or interest, if any, on any
debt security;
- impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security; or
- reduce the percentage in principal amount of outstanding debt
securities the consent of whose holders is required for
modification or amendment of the Indentures or for waiver of
compliance with certain provisions of the Indentures or for waiver
of certain defaults.
Each Indenture provides that the Company and the trustee may, without
the consent of any holders of debt securities, enter into supplemental
indentures for the purposes, among other things, of adding to the Company's
covenants, adding additional Events of Default, establishing the form or terms
of debt securities or curing ambiguities or inconsistencies in the applicable
Indenture, provided such action to cure ambiguities or inconsistencies does
not adversely affect the interests of the holders of the debt securities in
any material respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any holders of outstanding debt
securities, may consolidate with or merge into, or convey, transfer or lease
its assets substantially as an entirety to any entity, provided that the
entity formed by such consolidation or into which the Company is merged or
which acquires or leases the assets of the Company substantially as an
entirety is a corporation, partnership or trust organized under the laws of
any United States jurisdiction and assumes by supplemental indenture the
Company's obligations on the debt securities and under the Indentures, that
after giving effect to the transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, and that certain other
conditions are met. Upon compliance with these provisions by a successor
entity, the Company will (except in the case of a lease) be relieved of its
obligations under the Indentures and the debt securities.
DISCHARGE AND DEFEASANCE
The Company may terminate its obligations under each Indenture, other
than its obligations to pay the principal of and premium and interest, if any,
on the debt securities of any series and certain other obligations, if it:
- irrevocably deposits or causes to be irrevocably deposited with the
trustee as trust funds money or U.S. Government Obligations maturing
as to principal and interest sufficient to pay the principal of, any
interest on, and any mandatory sinking funds in respect of, all
outstanding debt securities of such series on the stated maturity of
such payments or on any redemption date; and
- complies with any additional conditions specified to be applicable
with respect to the defeasance of debt securities of such series.
<PAGE> 22
The terms of any series of debt securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company:
- irrevocably deposits or causes to be irrevocably deposited money or
U.S. Government Obligations as described above;
- makes a request to the trustee to be discharged from its obligations
on the debt securities of such series; and
- complies with any additional conditions specified to be applicable
with respect to legal defeasance of Securities of such series
then the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding debt securities of such series and the
obligations of the Company under the applicable Indenture and the debt
securities of such series to pay the principal of and premium and interest, if
any, on the debt securities of such series shall cease, terminate and be
completely discharged, and the holders thereof shall thereafter be entitled
only to payment out of the money or U.S. Government Obligations deposited with
the trustee as aforesaid, unless the Company's obligations are revived and
reinstated because the trustee is unable to apply such trust fund by reason of
any legal proceeding, order or judgment.
The term "U.S. Government Obligations" is defined in each Indenture as
direct noncallable obligations of, or noncallable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities will be issuable in definitive, registered form. Debt
Securities are also issuable in temporary or permanent global form. See
"Description of the Securities We May Offer - Book-Entry System."
Debt securities of any series will be exchangeable for other debt
securities of the same series and of a like aggregate principal amount and
tenor of different authorized denominations.
Debt securities may be presented for exchange as provided above, and may
be presented for registration of transfer (with the form of transfer endorsed
thereon duly executed), at the office of the security registrar or at the
office of any transfer agent designated by the Company for such purpose with
respect to any series of debt securities and referred to in an applicable
prospectus supplement, without service charge and upon payment of any taxes
and other governmental charges as described in the applicable Indenture. Such
transfer or exchange will be effected upon the security registrar or such
transfer agent, as the case may be, being satisfied with the documents of
title and identity of the person making the request. The Indentures provide
that the applicable trustee will be appointed as security registrar. If a
prospectus supplement refers to any transfer agents (in addition to the
security registrar) initially designated by the Company with respect to any
<PAGE> 23
series of debt securities, the Company may at any time rescind the designation
of any such transfer agent or approve a change in the location through which
any such transfer agent acts. The Company will be required to maintain a
transfer agent in each designated place of payment for each series of debt
securities. The Company may at any time designate additional transfer agents
with respect to any series of debt securities.
In the event of any redemption in part, the Company will not be required
to:
- issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15
days prior to the selection of debt securities of that series for
redemption and ending on the close of business on the day of
mailing of the relevant notice of redemption; or
- register the transfer of or exchange any debt security, or portion
thereof, called for redemption, except the unredeemed portion of
any debt security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in a prospectus supplement, payment of
principal of and premium and interest, if any, on debt securities will be made
in the designated currency or currency unit at the office of such paying agent
or paying agents as the Company may designate from time to time, except that
at the option of the Company payment of any interest may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the security register. Unless otherwise indicated in a prospectus
supplement, payment of any installment of interest on debt securities will be
made to the person in whose name such debt security is registered at the close
of business on the regular record date for such interest.
Unless otherwise indicated in a prospectus supplement, the corporate
trust office of the trustee in the Borough of Manhattan, The City of New York
will be designated as a paying agent for the Company for payments with respect
to debt securities. Any other paying agents in the United States initially
designated by the Company for the debt securities will be named in an
applicable prospectus supplement. The Company may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except
that, the Company will be required to maintain a paying agent in each
designated place of payment for each series of debt securities.
All moneys paid by the Company to a paying agent for the payment of
principal of and any premium or interest on any debt security which remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company and the holder of such debt security or any coupon will
thereafter look only to the Company for payment thereof.
MEETINGS
The Indentures contain provisions for convening meetings of the holders
<PAGE> 24
of debt securities of a series. A meeting may be called at any time by the
trustee, and also, upon request, by the Company or the holders of at least 10%
in principal amount of the outstanding debt securities of such series, in any
such case upon notice given as described under "- Notices" below. Except for
any consent that must be given by the holder of each outstanding debt security
affected thereby, as described under "- Modification" above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may
be adopted by the affirmative vote of the holders of a majority in principal
amount of the outstanding debt securities of that series; provided, however,
that, except for any consent that must be given by the holder of each
outstanding debt security affected thereby, as described under "-
Modification" above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the holders of a specified percentage, which is less
than a majority in principal amount of the outstanding debt securities of a
series, may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the holders of such
specified percentage in principal amount of the outstanding debt securities of
that series. Subject to the proviso set forth above, any resolution passed or
decision taken at any meeting of the holders of debt securities of any series
duly held in accordance with the Indenture will be binding on all holders of
debt securities of that series and any related coupons. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
outstanding debt securities of a series.
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they appear in the security register.
THE TRUSTEE
The applicable prospectus supplement will specify the trustee under the
Senior Indenture and the Subordinated Indenture. Wilmington Trust Company or
such other trustee as may be named in a prospectus supplement will be the
trustee under the Junior Subordinated Indenture. Each Indenture contains
certain limitations on the right of the trustee, as a creditor of the Company,
to obtain payment of claims in certain cases or to realize on certain property
received with respect to any such claims, as security or otherwise. The
trustee is permitted to engage in other transactions, except that, if it
acquires any conflicting interest (as defined), it must eliminate such
conflict or resign.
GOVERNING LAW
The Senior Indenture, the Subordinated Indenture, the Junior Subordinated
Indenture and the debt securities shall be governed by and construed under New
York law except to the extent that the Trust Indenture Act is applicable.
PROVISIONS APPLICABLE TO SUBORDINATED DEBT SECURITIES
CERTAIN DEFINITIONS APPLICABLE TO DESCRIPTION OF SUBORDINATION
<PAGE> 25
The term "Indebtedness," is defined in the Subordinated Indenture to
mean, without duplication, with respect to any person, the principal component
of (a) all obligations of such person (i) in respect of borrowed money,
whether or not the recourse of the lender is to the whole of the assets of
such person or only to a portion thereof, (ii) evidenced by bonds, notes,
debentures or similar instruments, (iii) for the payment of money representing
the balance deferred and unpaid of the purchase price of any property or
services (other than accounts payable or other obligations arising in the
ordinary course of business), (iv) evidenced by bankers acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to capitalized lease obligations, or (vi) evidenced by letter of credit or
reimbursement obligation of such person with respect to any letter of credit
(other than a letter of credit entered into for the purpose of providing
security in connection with the forward purchase and sale contracts or energy
swaps with respect to the Company's oil and gas business); (b) all current net
obligations of such person under interest rate swap obligations and foreign
currency hedges; (c) all liabilities of others of the kind described in the
preceding clauses (a) or (b) that such person has guaranteed or that are
otherwise its legal liability; (d) Indebtedness (as otherwise defined in this
definition) of others secured by a lien on any asset of such person (other
than liens securing obligations of such person under delivery contracts with
respect to the Company's oil and gas business), whether or not such
Indebtedness is assumed by such person (provided that if the obligations so
secured have not been assumed in full by such person or are not otherwise such
person's legal liability in full, then such obligation shall be deemed to have
been an amount equal to the greater of (A) the lesser of (1) the full amount
of such obligations and (2) the fair market value of such asset, as determined
in good faith by the Board of Directors of such person, which determination
shall be evidenced by a board resolution, and (B) the amount of obligations as
have been assumed by such person or which are otherwise such person's legal
liability), (e) such other items as are described in the prospectus supplement
relating to a particular series of subordinated debt securities; and (f) any
and all deferrals, renewals, and extensions, refinancings and refunding
(whether direct or indirect) of, or amendments, modifications or supplements
to, any liability of the kind described in any of the preceding clauses (a)
through (e) or this clause (f), whether or not between or among the same
parties.
The term "Payment Event of Default" is defined in the Subordinated
Indenture as any default in the payment of principal of or premium, if any, or
interest on any Senior Indebtedness when due (whether at maturity, upon
acceleration or otherwise).
The term "Permitted Junior Securities" is defined in the Subordinated
Indenture as subordinated debt securities of the Company (or any successor
obligor with respect to the Senior Indebtedness) provided for by a plan of
reorganization or readjustment that are subordinated in right of payment to
all Senior Indebtedness that may be outstanding to substantially the same
extent as, or to a greater extent than, the subordinated debt securities are
subordinated as provided in the Subordinated Indenture.
The term "Securities Payment" is defined in the Subordinated Indenture
to mean any payment or distribution of any kind or character, whether by way
of set-off or otherwise and whether in cash, property or securities (including
<PAGE> 26
any Junior Subordinated Payment) (as defined in the Subordinated Indenture) on
account of principal of, or premium, if any, or interest on, or Additional
Amounts (as defined in the Subordinated Indenture) with respect to, the
securities or on account of any purchase, repurchase, redemption or other
acquisition of securities, in any case whether by the Company or by any other
person on behalf of the Company.
The term "Senior Indebtedness" is defined in the Subordinated Indenture
as (i) all Indebtedness of the Company, including principal, premium, if any,
interest and all other amounts owing in respect of such Indebtedness
(including interest that, but for the filing of a petition initiating any
proceeding pursuant to any bankruptcy law with respect to the Company, would
accrue on such Indebtedness at the contractual rate provided in the
instruments evidencing the respective obligations, whether or not such claim
is allowed in such bankruptcy proceeding), whether existing on the date of
issuance of any subordinated debt securities or thereafter created, incurred
or assumed unless such Indebtedness by its terms or by the terms of the
instrument creating or evidencing it is subordinate in right of payment to or
is pari passu with the subordinated debt securities; (ii) all reimbursement
obligations of the Company with respect to letters of credit not otherwise
constituting Indebtedness; (iii) all obligations of the Company pursuant to
forward purchase and sale contracts or energy swaps with respect to the
Company's oil and gas business, including obligations to deliver natural gas
or other commodities and liabilities for any breach of obligations under such
contracts; (iv) all charges, fees, expenses (including reasonable attorneys
fees and expenses) and other amounts incurred by or owing to holders of
Indebtedness or obligations described in the preceding clauses (i), (ii) or
(iii) in connection with such Indebtedness or obligations; (v) all interest
payable during the pendency of a proceeding under Title 11 of the United
States Code on Indebtedness or obligations referred to in clauses (i), (ii) or
(iii) incurred prior to the commencement of such proceeding; and (vi) such
other indebtedness or obligations of the Company as defined in the prospectus
supplement for the particular issue of subordinated debt securities.
Notwithstanding the foregoing, Senior Indebtedness shall not include (i) any
Indebtedness of the Company to a subsidiary of the Company, (ii) Indebtedness
of the Company to, or guaranteed on behalf of any affiliate, including without
limitation amounts owed for compensation, and (iii) such other Indebtedness or
obligations as defined in the prospectus supplement for the particular issue
of subordinated debt securities.
SUBORDINATION
The payment of the principal of and premium, if any, and interest on the
subordinated debt securities is, to the extent set forth in the Subordinated
Indenture and in any applicable prospectus supplement, subordinated in right
of payment to the prior payment in full of all Senior Indebtedness, whether
now outstanding or incurred in the future. Upon any payment or distribution
of assets of the Company to creditors upon any liquidation, dissolution,
winding up, assignment for the benefit of creditors or marshaling of assets
and liabilities or any bankruptcy, insolvency, receivership, liquidation,
reorganization or similar proceedings of the Company, the holders of all
Senior Indebtedness will first be entitled to receive any payment in full of
all amounts due or to become due thereon in cash, or such payment duly
provided for, before any Securities Payment is made (other than in Permitted
<PAGE> 27
Junior Securities).
If a Payment Event of Default shall have occurred and be continuing with
respect to any Senior Indebtedness, no Securities Payment shall be made (other
than in Permitted Junior Securities). In the event that, notwithstanding the
restriction described in the preceding sentence, payment is made to the
trustee or a holder of subordinated debt securities prohibited by any such
restriction, then such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness
(prorated to such holders on the basis of the respective amount of Senior
Indebtedness held by such holders) or their representatives, if any, as their
respective interests may appear.
The subordination rights of holders of Senior Indebtedness will not be
prejudiced or impaired by any acts or failures to act by the Company or by any
such holder. The subordination of the subordinated debt securities set forth
above will not prevent the occurrence of any Event of Default under the
Subordinated Indenture. Furthermore, the subordination of the subordinated
debt securities as set forth above will not impair, as between the Company,
the holders of the subordinated debt securities and creditors of the Company
other than holders of Senior Indebtedness, the obligations of the Company to
make payments on the subordinated debt securities in accordance with their
terms. In certain circumstances, as set forth in the Indenture, the holders
of subordinated debt securities will be subrogated to certain rights of the
holders of Senior Indebtedness upon payment in full of all Senior
Indebtedness.
By reason of such subordination, in the event of insolvency of the
Company, the holders of Senior Indebtedness (as well as other creditors of the
Company who are holders of indebtedness that is not subordinated to the Senior
Indebtedness) may recover more, ratably, than the holders of the subordinated
debt securities.
The subordinated debt securities will also be effectively subordinated
to all liabilities, including trade payables and capitalized lease
obligations, if any, of the Company's subsidiaries. Any right of the Company
to receive the assets of any of its subsidiaries upon their liquidation or
reorganization (and the consequent right of the holders of the subordinated
debt securities to participate in those assets) will be subject to the prior
payment of claims of that subsidiary's creditors (including trade creditors),
except to the extent that the Company is itself a creditor of such subsidiary,
in which case the claims of the Company would still be subject to the prior
payment of claims secured by security interests in the assets of such
subsidiary and any other indebtedness of such subsidiary senior to that held
by the Company.
If the subordinated debt securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness outstanding
as of a recent date will be set forth in the prospectus supplement. The
Subordinated Indenture does not restrict the amount of Senior Indebtedness
that the Company may incur, although the terms of the subordinated debt
securities offered in connection with any prospectus supplement may contain
such limitations.
<PAGE> 28
The terms of Company's existing outstanding 9-1/4% Senior Subordinated
Notes due 2004 ("9-1/4% Notes") prohibit the Company from issuing subordinated
debt securities ranking senior in right of payment to the 9-1/4% Notes.
PROVISIONS APPLICABLE TO JUNIOR SUBORDINATED DEBT SECURITIES
EVENTS OF DEFAULT
In addition to the events described above under "Provisions Applicable
to All Debt Securities - Events of Default" applicable to all debt securities,
the voluntary or involuntary dissolution, winding up or termination of the
Trust that owns the series of junior subordinated debt securities will
constitute an event of default for any series of junior subordinated debt
securities issued pursuant to the Junior Subordinated Indenture, except in
connection with:
- the distribution of such junior subordinated debt securities to
holders of trust securities of the Trust;
- the redemption of all of the trust securities of the Trust; and
- mergers, consolidations or amalgamations permitted by the amended
declaration of the Trust.
The holders of at least a majority in aggregate liquidation amount of
the trust preferred securities of the Trust may waive any default or event of
default with respect to such series and its consequences, except defaults or
events of default that:
- are not waivable under the Junior Subordinated Indenture (such as
defaults regarding payment of principal, premium, if any, or
interest); or
- require the consent or vote of greater than a majority in principal
amount of the holders of junior subordinated debt securities to be
waived under the Junior Subordinated Indenture, in which case the
event of default may only be waived by the holders of the same
"super-majority" in liquidation amount of the trust preferred
securities.
Any such waiver shall cure such default or event of default. If, under
the amended declaration of a Trust, an event of default has occurred and is
attributable to the failure of the Company to pay principal, premium, if any,
or interest on, such junior subordinated debt securities, then each holder of
the trust preferred securities of the Trust may sue the Company or seek other
remedies, to force payment to such holder of the principal of, premium, if
any, or interest on, such junior subordinated debt securities having a
principal amount equal to the aggregate liquidation amount of the trust
preferred securities held by such holder.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE
Under the Junior Subordinated Indenture, the Company and the indenture
trustee may change certain rights of holders of a series of junior
<PAGE> 29
subordinated debt securities with the written consent of the holders of a
majority in principal amount of the series of junior subordinated debt
securities that is affected. Any such change will be subject to the
limitations described above under "Modification" applicable to the other debt
securities. If the property trustee of the Trust, as holder of junior
subordinated debt securities, is required to consent to any amendment,
modification or termination of the Junior Subordinated Indenture, the property
trustee will request directions from the holders of the trust securities of
the applicable Trust.
SUBORDINATION OF JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt securities will be unsecured and will be
subordinate and junior in priority of payment to certain of the Company's
other indebtedness to the extent described in a prospectus supplement. The
Junior Subordinated Indenture will not limit the amount of junior subordinated
debt securities which the Company may issue, nor does it limit the Company
from issuing any other secured or unsecured debt.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
GENERAL
The amended declaration of each Trust authorizes the respective trustees
to issue, on behalf of the Trust, one series of trust preferred securities.
Each Trust will use the proceeds from the sale of the trust preferred
securities to purchase a series of junior subordinated debt securities issued
by the Company. The property trustee will hold these junior subordinated debt
securities in trust for the benefit of the holders of such trust preferred
securities.
This section summarizes the general terms of the preferred securities
that the Trusts may offer. The prospectus supplement relating to any
particular preferred securities offered by a Trust will describe the specific
terms of the preferred securities, which may be in addition to or different
from the general terms summarized in this section. The summary in this section
and in any prospectus supplement does not describe every aspect of the trust
preferred securities offered and is subject to and qualified in its entirety
by reference to all the provisions of the amended declarations and the trust
preferred securities. The forms of the amended declarations and the trust
preferred securities are or will be filed as exhibits to or incorporated by
reference in the registration statement.
The Company will guarantee the payments of distributions and payments on
redemption or liquidation with respect to the trust preferred securities, but
only to the extent the Trust has funds available to make those payments and
has not made the payments. The trust preferred securities guarantee by the
Company is described in more detail below under "Description of the Trust
Preferred Securities Guarantee."
The assets of each Trust available for distribution to the holders of
its trust preferred securities will be limited to payments from the Company
under the series of junior subordinated debt securities held by the Trust. If
the Company fails to make a payment on the junior subordinated debt
<PAGE> 30
securities, the Trust will not have sufficient funds to make related payments,
including distributions, on its trust preferred securities.
The trust preferred securities guarantee, when taken together with the
Company's obligations under the series of junior subordinated debt securities,
the Junior Subordinated Indenture and the amended declaration of the Trust,
will provide a full and unconditional guarantee of amounts due on the trust
preferred securities issued by each Trust.
The prospectus supplement relating to any particular preferred
securities offered by a Trust will describe the specific terms of the
preferred securities, which may be in addition to or different from the
general terms summarized in this section. In particular, the prospectus
supplement will describe:
- the name of such trust preferred securities;
- the designation of the trust preferred securities;
- the dollar amount and number of trust preferred securities issued;
- the annual distribution rate(s) or method of determining such
rate(s), the payment date(s) and the record dates used to determine
the holders who are to receive distributions;
- the date(s) or the method to determine the date(s) from which
distributions shall be cumulative;
- the optional redemption provisions, if any, including the prices,
time periods and other terms and conditions for which such trust
preferred securities shall be purchased or redeemed, in whole or
in part;
- the terms and conditions, if any, upon which the applicable series
of junior subordinated debt securities and the related trust
preferred securities guarantee may be distributed to holders of
the trust preferred securities upon liquidation, dissolution,
termination or winding up of the Trust;
- any voting rights of the trust preferred securities other than
those described in this section;
- any securities exchange on which the trust preferred securities
will be listed;
- whether the trust preferred securities are to be issued in book-
entry form and represented by one or more global certificates, and
if so, the depositary for the global certificates and the specific
terms of the depositary arrangements;
- any other relevant rights, preferences, privileges, limitations or
restrictions of such trust preferred securities; and
- any applicable United States Federal income tax considerations.
<PAGE> 31
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The amended declaration of each Trust states that the Trust shall be
dissolved:
- on the expiration of the term of the Trust;
- upon the bankruptcy, dissolution or liquidation of the Company;
- upon a change in law requiring the Trust to register as an
investment company under the Investment Company Act of 1940;
- unless the Company takes certain actions, upon a change in the law
resulting in the Trust being subject to United States Federal
income tax on income received from the junior subordinated debt
securities held by the Trust, the interest payable by the Company
on the junior subordinated debt securities not being deductible
for United State Federal income tax purposes, or the Trust being
subject to more than a de minimus amount of other taxes;
- upon the redemption, conversion or exchange of all of the trust
securities of the Trust;
- upon the repayment of all of the junior subordinated debt securities
held by the Trust or at such time as no such junior subordinated
debt securities are outstanding;
- upon entry of a court order for the dissolution of the Trust; or
- upon the election of the Company to terminate the Trust and
distribute the related junior subordinated debt securities
directly to the holders of the trust securities.
In the event of a dissolution, after the Trust pays all amounts owed to
creditors, the holders of the trust securities will be entitled to receive:
- cash equal to the aggregate liquidation amount of each trust
security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions to the date of payment; or
- junior subordinated debt securities in an aggregate principal
amount equal to the aggregate liquidation amount of the trust
securities.
If a Trust cannot pay the full amount due on its trust securities
because insufficient assets are available for payment, then the amounts
payable by the Trust on its trust securities shall be paid pro rata. However,
if an event of default under the related indenture has occurred, the total
amounts due on the trust preferred securities will be paid before any
distribution on the trust common securities.
EVENTS OF DEFAULT
An event of default under the Junior Subordinated Indenture relating to
<PAGE> 32
a series of junior subordinated debt securities is an event of default under
the amended declaration of the Trust that owns those junior subordinated debt
securities. We have described these events of default under the sections
entitled "Description Debt Securities - Provisions Applicable to All Debt
Securities - Events of Default" and " - Provisions Applicable to Junior
Subordinated Debt Securities - Events of Default."
The Company and the regular trustees of each Trust must file annually
with the property trustee for the Trust a certificate stating whether or not
they are in compliance with all the applicable conditions and covenants under
the related amended declaration.
Upon the occurrence of an event of default, the property trustee of the
Trust, as the sole holder of the junior subordinated debt securities held by
the Trust, will have the right under the Junior Subordinated Indenture to
declare the principal of, premium, if any, and interest on such junior
subordinated debt securities to be immediately due and payable.
If a property trustee fails to enforce its rights under the amended
declaration or the Junior Subordinated Indenture then, to the fullest extent
permitted by law, and subject to the terms of the amended declaration and the
Junior Subordinated Indenture, any holder of trust preferred securities may
sue the Company, or seek other remedies, to enforce the property trustee's
rights under the amended declaration or the Junior Subordinated Indenture
without first instituting a legal proceeding against such property trustee or
any other person.
If the Company fails to pay principal, premium, if any, or interest on a
series of junior subordinated debt securities when payable, then a holder of
such trust preferred securities may directly sue the Company or seek other
remedies, to collect its pro rata share of payments owned.
REMOVAL AND REPLACEMENT OF TRUSTEES
Only the holders of trust common securities may remove or replace the
trustees of a Trust. The resignation or removal of any trustee and the
appointment of a successor trustee will be effective only on the acceptance of
appointment by the successor trustee in accordance with the provisions of the
amended declaration for the Trust.
CONVERSION OR EXCHANGE RIGHTS
The applicable prospectus supplement will set forth the terms on which
the trust preferred securities are convertible into or exchangeable for common
stock or other securities of the Company or any other person. Such terms will
include provisions as to whether conversion or exchange is mandatory, at the
option of the holder or at the option of the Company, and may include
provisions pursuant to which the number of shares of common stock or other
securities of the Company or any other person to be received by the holders of
trust preferred securities would be subject to adjustment.
MERGERS, CONSOLIDATIONS, CONVERSIONS OR AMALGAMATIONS OF THE TRUSTS
The Trusts may not consolidate, amalgamate, merge with or into, or be
<PAGE> 33
converted into or replaced by or convey, transfer or lease their properties
and assets substantially as an entirety to any other corporation or other
body, except as described below. A Trust may, with the consent of a majority
of its regular trustees and without the consent of the holders of its trust
securities or the other trustees, engage in any of the merger events referred
to above, provided that:
- the successor entity either
(1) assumes all of the obligations of the Trust relating to its
trust securities or
(2) substitutes other securities for the trust securities that
are substantially similar to such trust securities, so long
as the successor securities rank the same as such trust
securities for distributions and payments upon liquidation,
redemption and otherwise;
- the Company acknowledges a trustee of such successor entity who
has the same powers and duties as the property trustee of the
Trust, as the holder of the particular series of junior subordinated
debt securities;
- the trust preferred securities are listed, or any successor
securities will be listed, upon notice of issuance, on the same
national securities exchange or other organization that the trust
preferred securities are then listed;
- the merger event does not cause the trust preferred securities or
successor securities to be downgraded by any national rating agency;
- the merger event does not adversely affect the rights, preferences
and privileges of the holders of the trust securities or successor
securities in any material way;
- the successor entity has a purpose identical to that of the Trust;
- prior to the merger event, the Company has received an opinion of
counsel from a nationally recognized law firm stating that
(1) such merger event does not adversely affect the rights of
the holders of the Trust's preferred securities or any
successor securities in any material way (other than with
respect to any dilution of the holders' interest in the new
entity) and
(2) following the merger event, neither the Trust nor the successor
entity will be required to register as an investment company
under the Investment Company Act of 1940; and
- the Company or any permitted successor owns all of the common stock
of such successor entity and guarantees the obligations of the
successor entity under the successor securities in the same manner
as in the trust preferred securities guarantee and the guarantee of
<PAGE> 34
the common securities for the Trust.
In addition, unless all of the holders of the trust preferred securities
and trust common securities approve otherwise, the Trust may not consent to or
engage in a merger event if that event would cause the Trust or the successor
entity to be classified other than as a grantor trust for United States
federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATION
The holders of trust preferred securities have no voting rights except
as discussed above under " - Mergers, Consolidations, Conversion or
Amalgamations of the Trust" and below under "Description of the Trust
Preferred Securities Guarantee - Amendments and Assignment," and as otherwise
required by law or the amended declaration for the Trust.
The amended declaration may be amended if approved by a majority of the
regular trustees of the Trust. However, if any proposed amendment provides
for, or such regular trustees otherwise propose,
- any action that would adversely affect the powers, preferences or
special rights of the trust securities, whether by way of amendment
to such amended declaration or otherwise or
- the dissolution, winding-up or termination of the Trust other than
pursuant to the terms of its amended declaration,
then the holders of the trust securities as a single class will be entitled to
vote on such amendment or proposal. In that case, the amendment or proposal
will only be effective if approved by a majority in liquidation amount of the
trust securities affected by such amendment or proposal.
If any amendment or proposal referred to in clause (1) above would
adversely affect only a particular class of the trust securities of the Trust,
then only the affected class will be entitled to vote on such amendment or
proposal. Such amendment or proposal will only be effective with the approval
of a majority in liquidation amount of such affected class.
No amendment may be made to an amended declaration if such amendment
would:
- cause the Trust to be characterized as other than a grantor trust
for United States federal income tax purposes;
- impose any additional obligation on the Company without the consent
of the Company;
- reduce or otherwise adversely affect the powers of the property
trustee; or
- cause the Trust to be deemed to be an "investment company" which
is required to be registered under the Investment Company Act.
The holders of a majority in aggregate liquidation amount of the trust
<PAGE> 35
preferred securities have the right to:
- direct the time, method and place of conducting any proceeding for
any remedy available to the property trustee of the Trust; or
- direct the exercise of any trust or power conferred upon the
property trustee under the Trust's amended declaration, including
the right to direct the property trustee, as the holder of a
series of junior subordinated debt securities, to
(1) exercise the remedies available under the Junior Subordinated
Indenture with respect to those junior subordinated debt
securities,
(2) waive any event of default under the Junior Subordinated
Indenture that is waivable or
(3) cancel an acceleration of the principal of the junior
subordinated debt securities.
However, if the Junior Subordinated Indenture requires the consent of
the holders of more than a majority in aggregate principal amount of the
junior subordinated debt securities, then the property trustee must get
approval of the holders of such "super-majority" in liquidation amount of the
trust preferred securities.
In addition, the property trustee will not be required to take certain
of the actions described above unless it has obtained an opinion of counsel
stating that, as a result of such action, the Trust will continue to be
classified as a grantor trust for United States federal income tax purposes.
The property trustee of the Trust will notify all holders of trust
preferred securities of the Trust of any notice received from the indenture
trustee with respect to the junior subordinated debt securities held by the
Trust.
As described in the amended declaration, the property trustee may hold a
meeting to have holders of trust preferred securities vote on a change or have
them approve a change by written consent.
Any trust preferred securities that are owned by the Company or any of
its affiliates will be treated as if they were not outstanding for purposes of
any vote or consent of trust preferred securities. This means:
- the Company and any of its affiliates will not be able to vote on or
consent to matters requiring the vote or consent of holders of trust
preferred securities and
- any trust preferred securities owned by the Company or any of its
affiliates will not be counted in determining whether the required
percentage of votes or consents has been obtained.
INFORMATION CONCERNING DUTIES OF THE PROPERTY TRUSTEE
<PAGE> 36
For matters relating to compliance with the Trust Indenture Act, the
property trustee of the Trust will have all of the duties and responsibilities
of an indenture trustee under the Trust Indenture Act. The property trustee,
other than during the occurrence and continuance of an event of default under
the Trust, undertakes to perform only such duties as are specifically set
forth in the amended declaration and, upon an event of default, must use the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the property
trustee is under no obligation to exercise any of the powers given it by the
applicable amended declaration at the request of any holder of trust preferred
securities unless it is offered reasonable security or indemnity against the
costs, expenses and liabilities that it might incur. However, the holders of
the trust preferred securities will not be required to offer such an indemnity
where the holders, by exercising their voting rights, direct the property
trustee to take any action following an event of default.
MISCELLANEOUS
The regular trustees of a Trust are authorized and directed to conduct
the affairs of the Trust and to operate the Trust in such a way that
- it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
- it will be classified as a grantor trust for United States federal
income tax purposes; and
- the junior subordinated debt securities held by it will be treated
as indebtedness of the Company for United States federal income
tax purposes.
The Company and the regular trustees of the Trust are authorized to take
any action (so long as it is consistent with applicable law or the certificate
of trust or amended declaration) that the Company and the regular trustees of
the Trust determine to be necessary or desirable for such purposes.
Holders of trust preferred securities have no preemptive or similar
rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge
any of its assets.
GOVERNING LAW
The amended declaration and the related trust preferred securities will
be governed by and construed in accordance with the laws of the State of
Delaware and the Trust Indenture Act.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE
GENERAL
The Company will execute a trust preferred securities guarantee, which
benefits the holders of trust preferred securities, at the time that a Trust
<PAGE> 37
issues those trust preferred securities. The trust preferred securities
guarantee will be qualified as an indenture under the Trust Indenture Act and
will be held for the benefit of holders of trust preferred securities by a
guarantee trustee meeting the requirements of the Trust Indenture Act. Unless
otherwise indicated in a prospectus supplement, Wilmington Trust Company will
be the guarantee trustee.
GUARANTEE PAYMENT
This section summarizes the general terms of the guarantees that the
Company will provide in respect of the preferred securities that the Trusts
may offer. The summary in this section does not describe every aspect of the
guarantee and is subject to and qualified in its entirety by reference to any
description in the related prospectus supplement and to all the provisions of
the guarantee agreements. The form of the guarantee agreement is filed as an
exhibit to the registration statement.
The Company will irrevocably agree, as described in the trust preferred
securities guarantee, to pay in full, to the holders of the trust preferred
securities issued by a Trust, the following trust preferred securities
guarantee payments when due to the extent not paid by the Trust, regardless of
any defense, right of set-off or counterclaim which the Trust may have or
assert:
- any accrued and unpaid distributions required to be paid on the
trust preferred securities, to the extent that the Trust has funds
available to make the payment;
- the redemption price, to the extent that the Trust has funds
available to make the payment; and
- upon a voluntary or involuntary dissolution and liquidation of the
Trust (other than in connection with a distribution of junior
subordinated debt securities to holders of such trust preferred
securities or the redemption of all such trust preferred
securities), the lesser of
(1) the aggregate of the liquidation amount specified in the
prospectus supplement for each trust preferred security plus
all accrued and unpaid distributions on the trust preferred
securities to the date of payment, to the extent the Trust
has funds available to make the payment and
(2) the amount of assets of the Trust remaining available for
distribution to holders of its trust preferred securities
upon a dissolution and liquidation of the trust ("Liquidation
Payment").
The Company's obligation to make a trust preferred securities guarantee
payment may be satisfied by directly paying the required amounts to the
holders of the trust preferred securities or by causing the Trust to pay the
amounts to the holders.
The combined operation of the Company's obligations under the Junior
<PAGE> 38
Subordinated Indenture and the trust preferred securities guarantee and
amended declaration has the effect of providing a full, irrevocable and
unconditional guarantee of the Trust's obligations under its trust preferred
securities.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will constitute an unsecured
obligation of the Company and will rank:
- subordinated and junior in right of payment to all the Company's
other liabilities, including the junior subordinated debt
securities, except those liabilities made equal or subordinate to
the guarantee by their terms; and
- senior to the following:
(1) all capital stock (other than the most senior preferred shares
issued, from time to time, by the Company, which will rank
equally with the guarantee) issued by the Company; and
(2) any guarantee entered into by the Company relating to its
capital stock (other than the most senior preferred shares
issued, from time to time, by the Company).
The trust preferred securities guarantee will rank equally with
obligations under other guarantee agreements that the Company may enter into
from time to time if both:
- the agreements are in substantially the form of the preferred
securities guarantee and provide for comparable guarantees by the
Company of payment on preferred securities issued by other trusts or
financing vehicles of the Company; and
- the debt relating to those preferred securities are junior
subordinated, unsecured indebtedness of the Company.
By acceptance of the trust preferred securities, holders accept the
subordination provisions and other terms of the trust preferred securities
guarantee. The trust preferred securities guarantee will constitute a
guarantee of payment and not of collection (in other words, the holder of the
guaranteed security may sue the Company, or seek other remedies, to enforce
its rights under the trust preferred securities guarantee without first suing
any other person or entity). The trust preferred securities guarantee will not
be discharged except by payment of the guarantee payments in full to the
extent not previously paid or upon distribution of the corresponding series of
junior subordinated debt securities to the holders of trust preferred
securities pursuant to the amended declaration.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the
rights of holders of trust preferred securities in any material respect (in
which case no consent of such holders will be required), a trust preferred
<PAGE> 39
securities guarantee may only be amended with the prior approval of the
holders of a majority in aggregate liquidation amount of such trust preferred
securities. We have described the way to obtain any approval under
"Description of the Trust Preferred Securities - Voting Rights; Amendment of
Declaration." All guarantees and agreements contained in the trust preferred
securities guarantee will be binding on the Company's successors, assigns,
receivers, trustees and representatives and are for the benefit of the holders
of the applicable trust preferred securities.
TRUST PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT
An event of default under the trust preferred securities guarantee
occurs if the Company fails to make any of its required payments or perform
its obligations under the trust preferred securities guarantee.
The holders of at least a majority in aggregate liquidation amount of
the trust preferred securities will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
guarantee trustee or to direct the exercise of any trust or power given to the
guarantee trustee under the trust preferred securities guarantee.
INFORMATION CONCERNING DUTIES OF THE TRUST PREFERRED GUARANTEE TRUSTEE
The guarantee trustee under the trust preferred securities guarantee,
other than during the occurrence and continuance of an event of default under
the trust preferred securities guarantee, will only perform the duties that
are specifically described in the trust preferred securities guarantee. After
such a default, the trust preferred guarantee trustee will exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee is under no obligation to exercise any of its powers as described in
the trust preferred securities guarantee at the request of any holder of
covered trust preferred securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that it might incur.
TERMINATION OF THE TRUST PREFERRED SECURITIES GUARANTEE
The trust preferred securities guarantee will terminate once the trust
preferred securities are paid in full or upon distribution of the
corresponding series of junior subordinated debt securities to the holders of
the trust preferred securities. The trust preferred securities guarantee will
continue to be effective or will be reinstated if at any time any holder of
trust preferred securities must restore payment of any sums paid under such
trust preferred securities or such trust preferred securities guarantee.
GOVERNING LAW
The trust preferred securities guarantee will be governed by and
construed in accordance with the laws of the State of New York and the Trust
Indenture Act.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST PREFERRED SECURITIES GUARANTEE
AND THE SUBORDINATED DEBT SECURITIES HELD BY THE TRUST
<PAGE> 40
Payments of distributions and redemption and liquidation payments due on
the trust preferred securities, to the extent the Trust has funds available
for the payments, will be guaranteed by the Company to the extent described
above under "Description of the Trust Preferred Securities Guarantee." The
combined operation of the Company's obligations under the trust preferred
securities guarantee, amended declaration and the Junior Subordinated
Indenture has the effect of providing a full, irrevocable and unconditional
guarantee of each of the Trusts' obligations under its trust preferred
securities.
As long as the Company makes payments of interest and other payments
when due on the junior subordinated debt securities held by a Trust, such
payments will be sufficient to cover the payment of distributions and
redemption and liquidation payments due on the trust preferred securities
issued by the Trust. This is because:
- the aggregate principal amount of the junior subordinated debt
securities will be equal to the sum of the aggregate liquidation
amount of the trust securities;
- the interest rate and interest and other payment dates on the
junior subordinated debt securities will match the distribution
rate and distribution and other payment dates for the trust
preferred securities;
- the Company will pay for any and all costs, expenses and
liabilities of each Trust except the Trust's obligations under its
trust preferred securities; and
- each amended declaration provides that a Trust will not engage in
any activity that is not consistent with the limited purposes of
the Trust.
If and to the extent that the Company does not make payments on such
junior subordinated debt securities, the Trust will not have funds available
to make payments of distributions or other amounts due on its trust preferred
securities. In those circumstances, you will not be able to rely upon the
trust preferred securities guarantee for payment of these amounts. Instead,
you may directly sue the Company or seek other remedies to collect your pro
rata share of payments owed. If you sue the Company to collect payment, then
the Company will assume your rights as a holder of trust preferred securities
under the amended declaration to the extent the Company makes a payment to you
in any such legal action.
A holder of any trust preferred security may sue the Company, or seek
other remedies, to enforce its rights under the trust preferred securities
guarantee without first suing the guarantee trustee, the Trust or any other
person or entity.
PLAN OF DISTRIBUTION
The Company may sell common stock, preferred stock, any series of debt
securities or guarantees and the Trusts may sell trust preferred securities in
one or more of the following ways from time to time:
<PAGE> 41
- to underwriters for resale to the public or to institutional
investors;
- directly to institutional investors; or
- through agents to the public or to institutional investors.
The offered securities may be distributed periodically in one or more
transactions at:
- a fixed price or prices, which may be changed;
- market prices prevailing at the time of sale;
- prices related to the prevailing market prices; or
- negotiated prices.
In connection with the sale of offered securities, underwriters or
agents may receive compensation from the Company in the form of underwriting
discounts or commissions. They may also receive commissions from purchasers of
offered securities for whom they may act as agent. Underwriters or agents may
sell offered securities to or through dealers. Those dealers may receive
compensation in the form of discounts, concessions, or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent.
The prospectus supplement will set forth the terms of the offering of
the securities, including the name or names of any underwriters or agents, the
purchase price of such securities and the proceeds to the Company or the
Trusts, as the case may be, from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
the securities may be listed.
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale.
Unless otherwise set forth in a prospectus supplement, the obligations
of the underwriters to purchase any series of securities will be subject to
certain conditions precedent and the underwriters will be obligated to
purchase all of such series of securities, if any are purchased.
Underwriters, dealers, and agents participating in the distribution of
the offered securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
offered securities may be deemed to be underwriting discounts and commissions,
under the Securities Act of 1933. Underwriters and agents may be entitled
under agreements entered into with the Company and/or the Trusts to
indemnification by the Company and/or the Trusts against certain civil
<PAGE> 42
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the underwriters or agents may be
required to make in respect thereof.
Underwriters and agents and/or their affiliates may engage in
transactions with or perform services for the Company and its affiliates in
the ordinary course of business.
Each series of offered securities will be a new issue of securities and
will have no established trading market, other than the common stock which is
listed on the New York Stock Exchange. Any common stock sold pursuant to a
prospectus supplement will be listed on the New York Stock Exchange subject to
official notice of issuance. Other securities may or may not be listed on a
national securities exchange. Any underwriters to whom securities are sold by
the Company or by a Trust for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice.
VALIDITY OF OFFERED SECURITIES
The validity of the offered securities will be passed upon for us by
Crowe & Dunlevy, A Professional Corporation, and for the underwriters or
agents, if any, by a firm named in the prospectus supplement relating to the
particular security. Certain matters of Delaware law relating to the trust
preferred securities will be passed upon on behalf of the Trusts by Richards,
Layton & Finger, P.A., special Delaware counsel to the Trusts.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K
for the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Such financial statements and schedule are, and audited financial
statements to be included in subsequently filed documents will be,
incorporated by reference in reliance on Ernst & Young LLP's reports
pertaining to such financial statements (to the extent covered by consents
filed with the Securities and Exchange Commission), given on their authority
as experts in accounting and auditing.
Certain estimates of our oil and gas reserves and related information as
of December 31, 1998 included in our Annual Report on Form 10-K for the year
ended December 31, 1998 and incorporated herein by reference in this
prospectus and elsewhere in the registration statement have been derived from
engineering reports prepared by Company engineers and reviewed and reported on
by Ryder Scott Company, and all such information has been so incorporated in
reliance on the authority of such firm as experts regarding the matters
contained in their report. Future estimates of oil and gas reserves and
related information hereafter incorporated by reference in this prospectus and
the registration statement will be incorporated in reliance upon the reports
of the firm examining such oil and gas reserves and related information and
upon the authority of any such firm as experts regarding the matters contained
in their reports, to the extent such firm has consented to the use of their
reports.
<PAGE> 43
WHERE YOU CAN FIND MORE INFORMATION
The Company files reports, proxy statements and other information with
the Securities and Exchange Commission. Our filings are available over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at the SEC's public reference rooms at:
- 450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549;
- Seven World Trade Center
13th Floor
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Suite 1400
Chicago, Illinois 60601.
You may call the SEC at (202)942-8090 for more information on the
public reference rooms and their copy charges. You may also inspect the
reports and other information we file with the SEC at:
New York Stock Exchange
20 Broad Street
New York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC that
covers the securities described in this prospectus. For further information on
the Company, the Trusts and the securities, you should refer to our
registration statement and its exhibits. In this prospectus, we have
summarized material provisions of contracts and other documents. Since this
prospectus may not contain all the information that you may find important,
you should review the full text of these documents. We have included copies of
these documents as exhibits to our registration statement. The registration
statement can be obtained from the SEC in the ways described above, or from
the Company.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
them. This means that we can disclose important information to you by
referring you to those documents. Any information we reference in this manner
is considered part of this prospectus. Certain information we file with SEC
after the date of this prospectus will automatically update and, to the extent
inconsistent, supersede the information contained in this prospectus.
We incorporate by reference the following document which we have filed
with the SEC:
- Annual Report on Form 10-K for the year ended December 31, 1998; and
<PAGE> 44
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
We also incorporate by reference any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 after the date of this prospectus but before the end of the
offering of the securities made by this prospectus.
You may request a copy of these filings, at no cost, by contacting us
at:
Investor Relations Department
Louis Dreyfus Natural Gas Corp.
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134-2600.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this
Registration Statement shall have been the meanings assigned to them in the
Prospectus which forms a part of this Registration Statement.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the Company's estimates of the expenses
that it will incur in connection with the offering described in the
Registration Statement:
SEC Registration Fee (actual fee). . . . . . . . . . . . . . . . $111,200
Printing and Engraving Expenses. . . . . . . . . . . . . . . . . 75,000
Legal Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 125,000
Accountants' Fees and Expenses . . . . . . . . . . . . . . . . . 40,000
Rating Agencies' Fees. . . . . . . . . . . . . . . . . . . . . . 168,000
Transfer Agent's and Trustees' Fees and Expenses . . . . . . . . 50,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
--------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $594,200
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that, pursuant to
Oklahoma law, the Company's directors shall not be liable for monetary damages
for breach of the directors' fiduciary duty of care to the Company and its
stockholders. The provision in the Certificate of Incorporation does not
eliminate the duty of care and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Oklahoma law. However, such remedies may not be effective in
all cases. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company, as well
as acts or omissions not in good faith or involving intentional misconduct,
for knowing violations of law, for actions leading to improper personal
benefit to the director, and for payment of dividends or approval of stock
<PAGE> 45
repurchases or redemptions that are unlawful under Oklahoma law. The
provision also does not affect a director's responsibilities under any other
law, such as the state or federal securities laws.
Under Section 1031 of the Oklahoma General Corporation Act, the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933 ( the "Securities Act").
The Company's Certificate of Incorporation provides that the Company
shall indemnify its directors and officers to the fullest extent permitted by
Oklahoma law. The Certificate of Incorporation requires the Company to
indemnify such persons against expenses, judgments, fines, settlements and
other amounts incurred in connection with any proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director or an officer of the Company or any of
its affiliated enterprises, provided such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal proceedings, had no
reasonable cause to believe his conduct was unlawful. However, in the case of
a derivative action, an officer or director will not be entitled to
indemnification in respect to any claim, issue or matter as to which such
person is adjudged to be liable to the Company, unless and only to the extent
that the court in which the action was brought determines that such person is
fairly and reasonably entitled to indemnity for expenses.
The Company has entered into Indemnification Agreements with each
director of the Company which require the Company to indemnify such persons
against certain liabilities and expenses incurred by any such persons by
reason of their status or service as directors or officers of the Company and
which set forth procedures that will apply in the event of a claim for
indemnification under such agreements. The Indemnification Agreements also
require that the Company use commercially reasonable efforts to maintain
policies of directors' liability
II-1
<PAGE> 46
insurance. The Company's directors and officers are covered by directors and
officers insurance policies providing insurance protection for liabilities
specified in such policies.
The forms of the Underwriting Agreements, which will be filed as
Exhibits hereto, will provide that the Underwriters will indemnify the
Registrant, its directors and officers and certain other persons against
liabilities, including liabilities under the Securities Act with respect to
information furnished in writing to the Registrant for use in this
Registration Statement.
ITEM 16. EXHIBITS.
1.1 -- Form of Underwriting Agreement (for equity securities).*
1.2 -- Form of Underwriting Agreement (for debt securities).*
1.3 -- Form of Underwriting Agreement (for preferred securities of
the Trusts).*
4.1 -- Amended and Restated Certificate of Incorporation of the
Registrant (Incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1, Registration
No. 33-69102).
4.2 -- Certificate of Merger of the Registrant dated September 9, 1993
(Incorporated by reference to Exhibit 3.2 of the Registrant's
Registration Statement on Form S-1, Registration No.
33-69102).
4.3 -- Amended and Restated Bylaws of the Registrant (Incorporated by
reference to Exhibit 3.3 of the Registrant's Registration
Statement on Form S-1, Registration No. 33-69102).
4.4 -- Certificate of Merger of the Registrant dated November 1, 1993
(Incorporated by reference to Exhibit 3.4 of the Registrant's
Registration Statement on Form S-1, Registration No. 33-69102).
4.5 -- Indenture dated as of June 15, 1994 for $100,000,000 of 9-1/4%
Senior Subordinated Notes due 2004 between the Registrant, as
Issuer, and Bank of Montreal Trust Company, as Trustee
(Incorporated by reference to Exhibit 10.2 of the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 1994).
4.6 -- Indenture dated as of December 11, 1997 for $200,000,000 of
6-7/8% Senior Notes due 2007 between the Registrant, as Issuer,
and LaSalle National Bank, as Trustee (Incorporated by
reference to Exhibit 4.1 of the Registrant's Registration
Statement on Form S-4, Registration No. 333-45773).
4.7 -- Form of Indenture with respect to senior indebtedness.
4.8 -- Form of Indenture with respect to subordinated indebtedness.
<PAGE> 47
4.9 -- Form of Indenture with respect to junior subordinated
indebtedness to be issued to the Louis Dreyfus Natural Gas
Trust I and II.
4.10 -- Form of senior debt securities (included in Exhibit 4.7).
4.11 -- Form of subordinated debt securities (included in Exhibit 4.8).
4.12 -- Form of junior subordinated debt securities (included in
Exhibit 4.9).
4.13 -- Form of Certificate of Designation for preferred stock.*
4.14 -- Certificate of Trust of Louis Dreyfus Natural Gas Trust I.
II-2
<PAGE> 48
4.15 -- Certificate of Trust of Louis Dreyfus Natural Gas Trust II.
4.16 -- Declaration of Trust of Louis Dreyfus Natural Gas Trust I.
4.17 -- Declaration of Trust of Louis Dreyfus Natural Gas Trust II.
4.18 -- Form of Amended and Restated Declaration of Trust for the Louis
Dreyfus Natural Gas Trusts.
4.19 -- Form of Trust Preferred Security (included in Exhibit 4.18).
4.20 -- Form of Guarantee Agreement with respect to the Preferred
Securities of the Louis Dreyfus Natural Gas Trusts.
5.1 -- Opinion of Crowe & Dunlevy, A Professional Corporation.
5.2 -- Opinion of Richards, Layton & Finger, P.A.
12.1 -- Statement regarding computation of ratio of earnings to fixed
charges.
23.1 -- Consent of Crowe & Dunlevy (included in Exhibit 5.1).
23.2 -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.2).
23.3 -- Consent of Ernst & Young LLP.
23.4 -- Consent of Ryder Scott Company.
23.5 -- Consents of other experts, if required.*
24.1 -- Powers of Attorney.
25.1 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 relating to Senior Indenture.*
25.2 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 relating to Subordinated Indenture.*
25.3 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company as Trustee under Junior
Subordinated Indenture.
25.4 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Property Trustee, relating
to Louis Dreyfus Natural Gas Trust I.
25.5 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Property Trustee, relating
to Louis Dreyfus Natural Gas Trust II.
25.6 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Guarantee Trustee,
<PAGE> 49
relating to Louis Dreyfus Natural Gas Trust I.
25.7 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Guarantee Trustee,
relating to Louis Dreyfus Natural Gas Trust II.
- ---------------------------
* To be filed as an exhibit to Form 8-K in reference to the specific
offering of securities, if any, to which it relates.
II-3
<PAGE> 50
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment 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 this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference
in this Registration Statement.
(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 post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 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) The undersigned Registrant hereby undertakes if securities are to be
offered pursuant to competitive bidding (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of section 10(a) of the Securities Act, and relating to
<PAGE> 51
the securities offered at competitive bidding, as contained in this
Registration Statement, together with any supplements thereto, and (2) to
file an amendment to this Registration Statement reflecting the results of
bidding, terms of the reoffering and related matters to the extent required by
the applicable form, not later than the first use, authorized by the issuer
after the opening of bids, of a prospectus relating to the securities offered
at competitive bidding, unless no further public offering of such securities
by the issuer and no reoffering of such securities by the purchasers is
proposed to be made.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referenced to in Item 15 of this
Registration Statement, or otherwise, the Registrant 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 claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling persons of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
II-4
<PAGE> 52
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that, 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 a form of prospectus filed by the
Registrants 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.
(f) The undersigned Registrant hereby undertakes to file applications
for the purpose of determining the eligibility of the trustees under the
indentures relating to senior indebtedness, subordinated indebtedness and
junior subordinated indebtedness to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
II-5
<PAGE> 53
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 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 Oklahoma City, State of Oklahoma, on
May 21, 1999.
LOUIS DREYFUS NATURAL GAS CORP.
By: /s/ Jeffrey A. Bonney
------------------------------------
Jeffrey A. Bonney, Executive Vice
President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Mark E. Monroe * President, Chief Executive May 21, 1999
- ---------------------- Officer and Director (principal
Mark E. Monroe executive officer)
Richard E. Bross * Executive Vice President and May 21, 1999
- ---------------------- Director
Richard E. Bross
/s/Jeffrey A. Bonney Executive Vice President and May 21, 1999
- ---------------------- Chief Financial Officer
Jeffrey A. Bonney (principal financial and
accounting officer)
Simon B. Rich, Jr. * Chairman of the Board of May 21, 1999
- ---------------------- Directors
Simon B. Rich, Jr.
Mark Andrews * Vice Chairman of the Board of May 21, 1999
- ---------------------- Directors
Mark Andrews
E. William Barnett * Director May 21, 1999
- ----------------------
E. William Barnett
Daniel R. Finn, Jr. * Director May 21, 1999
- ----------------------
Daniel R. Finn, Jr.
<PAGE> 54
Peter G. Gerry * Director May 21, 1999
- ----------------------
Peter G. Gerry
Gerard Louis-Dreyfus * Director May 21, 1999
- ----------------------
Gerard Louis-Dreyfus
John H. Moore * Director May 21, 1999
- ----------------------
John H. Moore
James R. Paul * Director May 21, 1999
- ----------------------
James R. Paul
Ernest F. Steiner * Director May 21, 1999
- ----------------------
Ernest F. Steiner
* By: /s/ Jeffrey A. Bonney
-----------------------
Jeffrey A. Bonney
Attorney-in-fact
II-6
<PAGE> 55
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of Louis
Dreyfus Natural Gas Trust I and Louis Dreyfus Natural Gas Trust II certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and that it has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Oklahoma City, Oklahoma, on May 21,
1999.
LOUIS DREYFUS NATURAL GAS TRUST I
By: LOUIS DREYFUS NATURAL GAS CORP.,
as Sponsor
By: /s/ Jeffrey A. Bonney
-------------------------------------
Jeffrey A. Bonney, Executive Vice
President and Chief Financial Officer
LOUIS DREYFUS NATURAL GAS TRUST II
By: LOUIS DREYFUS NATURAL GAS CORP.,
as Sponsor
By: /s/ Jeffrey A. Bonney
-------------------------------------
Jeffrey A. Bonney, Executive Vice
President and Chief Financial Officer
II-7
<PAGE> 56
INDEX TO EXHIBITS
Exhibit No. Description
1.1 -- Form of Underwriting Agreement (for equity securities).*
1.2 -- Form of Underwriting Agreement (for debt securities).*
1.3 -- Form of Underwriting Agreement (for preferred securities of
the Trusts).*
4.1 -- Amended and Restated Certificate of Incorporation of the
Registrant (Incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1, Registration
No. 33-69102).
4.2 -- Certificate of Merger of the Registrant dated September 9, 1993
(Incorporated by reference to Exhibit 3.2 of the Registrant's
Registration Statement on Form S-1, Registration No. 33-69102).
4.3 -- Amended and Restated Bylaws of the Registrant (Incorporated by
reference to Exhibit 3.3 of the Registrant's Registration
Statement on Form S-1, Registration No. 33-69102).
4.4 -- Certificate of Merger of the Registrant dated November 1, 1993
(Incorporated by reference to Exhibit 3.4 of the Registrant's
Registration Statement on Form S-1, Registration No. 33-69102).
4.5 -- Indenture dated as of June 15, 1994 for $100,000,000 of 9-1/4%
Senior Subordinated Notes due 2004 between the Registrant, as
Issuer, and Bank of Montreal Trust Company, as Trustee
(Incorporated by reference to Exhibit 10.2 of the Registrant's
Quarterly Report on Form 10-Q for the quarter ended September
30, 1994).
4.6 -- Indenture dated as of December 11, 1997 for $200,000,000 of
6-7/8% Senior Notes due 2007 between the Registrant, as Issuer,
and LaSalle National Bank, as Trustee (Incorporated by reference
to Exhibit 4.1 of the Registrant's Registration Statement on
Form S-4, Registration No. 333-45773).
4.7 -- Form of Indenture with respect to senior indebtedness.
4.8 -- Form of Indenture with respect to subordinated indebtedness.
4.9 -- Form of Indenture with respect to junior subordinated
indebtedness to be issued to the Louis Dreyfus Natural Gas Trust
I and II.
4.10 -- Form of senior debt securities (included in Exhibit 4.7).
4.11 -- Form of subordinated debt securities (included in Exhibit 4.8).
4.12 -- Form of junior subordinated debt securities (included in Exhibit
4.9).
4.13 -- Form of Certificate of Designation for preferred stock.*
4.14 -- Certificate of Trust of Louis Dreyfus Natural Gas Trust I.
4.15 -- Certificate of Trust of Louis Dreyfus Natural Gas Trust II.
4.16 -- Declaration of Trust of Louis Dreyfus Natural Gas Trust I.
4.17 -- Declaration of Trust of Louis Dreyfus Natural Gas Trust II.
4.18 -- Form of Amended and Restated Declaration of Trust for the Louis
Dreyfus Natural Gas Trusts.
4.19 -- Form of Trust Preferred Security (included in Exhibit 4.18).
4.20 -- Form of Guarantee Agreement with respect to the Preferred
Securities of the Louis Dreyfus Natural Gas Trusts.
5.1 -- Opinion of Crowe & Dunlevy, A Professional Corporation.
5.2 -- Opinion of Richards, Layton & Finger, P.A.
12.1 -- Statement regarding computation of ratio of earnings to fixed
<PAGE> 57
charges.
23.1 -- Consent of Crowe & Dunlevy (included in Exhibit 5.1).
23.2 -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.2).
23.3 -- Consent of Ernst & Young LLP.
23.4 -- Consent of Ryder Scott Company.
23.5 -- Consents of other experts, if required.*
24.1 -- Powers of Attorney.
25.1 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 relating to Senior Indenture.*
25.2 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 relating to Subordinated Indenture.*
25.3 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company as Trustee under Junior
Subordinated Indenture.
25.4 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Property Trustee, relating
to Louis Dreyfus Natural Gas Trust I.
25.5 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Property Trustee, relating
to Louis Dreyfus Natural Gas Trust II.
25.6 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Guarantee Trustee, relating
to Louis Dreyfus Natural Gas Trust I.
25.7 -- Form T-1 Statement of Eligibility under Trust Indenture Act of
1939 of Wilmington Trust Company, as Guarantee Trustee, relating
to Louis Dreyfus Natural Gas Trust II.
- ------------------------
* To be filed as an exhibit to Form 8-K in reference to the specific
offering of securities, if any, to which it relates.
<PAGE> 1
EXHIBIT 4.8
LOUIS DREYFUS NATURAL GAS CORP.,
AS ISSUER
AND
-------------------------------,
AS TRUSTEE
INDENTURE
DATED AS OF ,
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SUBORDINATED DEBT SECURITIES
<PAGE> 2
LOUIS DREYFUS NATURAL GAS CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ,
--------- ----
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
Section 310 (a)(1).................................. 609
(a)(2).................................. 609
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 608, 610
Section 311 (a)..................................... 613
(b)..................................... 613
Section 312 (a)..................................... 701, 702(a)
(b)..................................... 702(b)
(c)..................................... 702(c)
Section 313 (a)..................................... 703(a)
(b)..................................... 703(b)
(c)..................................... 703(c)
(d)..................................... 703(d)
Section 314 (a)..................................... 704
(b)..................................... Not Applicable
(c)(1).................................. 103
(c)(2).................................. 103
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 103
Section 315 (a)..................................... 601(a)
(b)..................................... 602, 703(a)
(c)..................................... 601(b)
(d)..................................... 601(c)
(d)(1).................................. 601(a)(1)
(d)(2).................................. 601(c)(2)
(d)(3).................................. 601(c)(3)
(e)..................................... 514
Section 316 (a)(l)(A)............................... 502, 512
(a)(1)(B)............................... 513
(a)(2).................................. Not Applicable
(b)..................................... 508
Section 317 (a)(1).................................. 503
(a)(2).................................. 504
(b)..................................... 1003
Section 318 (a)..................................... 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . 10
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . 10
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . 11
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . 11
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . 11
Board of Directors. . . . . . . . . . . . . . . . . . . . . . 11
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . 11
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . 11
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . 11
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Common Depositary . . . . . . . . . . . . . . . . . . . . . . 12
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Company Request . . . . . . . . . . . . . . . . . . . . . . . 12
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . 12
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 12
Depository. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default. . . . . . . . . . . . . . . . . . . . . . . 12
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 12
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 13
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . 13
Junior Subordinated Payment . . . . . . . . . . . . . . . . . 13
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . 13
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 14
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 14
Original Issue Discount Security. . . . . . . . . . . . . . . 14
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 14
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . 15
Payment Event of Default. . . . . . . . . . . . . . . . . . . 15
Permitted Junior Securities . . . . . . . . . . . . . . . . . 15
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . 15
Predecessor Security. . . . . . . . . . . . . . . . . . . . . 15
Proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 16
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . 16
Refinance . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 16
Required Currency . . . . . . . . . . . . . . . . . . . . . . 16
<PAGE> 4
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 16
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Securities Payment. . . . . . . . . . . . . . . . . . . . . . 16
Security Register" and "Security Registrar. . . . . . . . . . 16
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 16
Special Record Date . . . . . . . . . . . . . . . . . . . . . 17
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 17
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 17
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States . . . . . . . . . . . . . . . . . . . . . . . . 18
United States Alien . . . . . . . . . . . . . . . . . . . . . 18
U.S. Government Obligations . . . . . . . . . . . . . . . . . 18
Vice President. . . . . . . . . . . . . . . . . . . . . . . . 18
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . 18
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 102. Incorporation by Reference of Trust Indenture Act. . 18
Bankruptcy Act. . . . . . . . . . . . . . . . . . . . . . . . 18
Indenture securities. . . . . . . . . . . . . . . . . . . . . 18
Indenture security holder . . . . . . . . . . . . . . . . . . 18
Indenture to be qualified . . . . . . . . . . . . . . . . . . 18
Indenture trustee" or "institutional trustee. . . . . . . . . 18
Obligor . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 103. Compliance Certificates and Opinions . . . . . . . . 19
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . 19
SECTION 105. Acts of Holders. . . . . . . . . . . . . . . . . . . 20
SECTION 106. Notices, Etc., to Trustee and Company. . . . . . . . 21
SECTION 107. Notice to Holders; Waiver. . . . . . . . . . . . . . 21
SECTION 108. Conflict With Trust Indenture Act. . . . . . . . . . 22
SECTION 109. Effect of Headings and Table of Contents . . . . . . 22
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . 22
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . 22
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . 22
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . 23
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . 23
SECTION 115. Corporate Obligation . . . . . . . . . . . . . . . . 23
ARTICLE TWO
SECURITY FORMS. . . . . . . . . . . . . . . . . . . . . . . . 23
<PAGE> 5
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . 23
SECTION 202. Form of Trustee's Certificate of Authentication. . . 24
SECTION 203. Securities in Global Form. . . . . . . . . . . . . . 24
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . 25
ARTICLE THREE
THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 25
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . 28
SECTION 303. Execution, Authentication, Delivery and Dating . . . 28
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 32
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 33
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 34
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . 35
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . 36
SECTION 403. Discharge of Liability on Securities of Any Series . 36
SECTION 404. Reinstatement. . . . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and Annulment . 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 41
<PAGE> 6
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 506. Application of Money Collected. . . . . . . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 43
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . 44
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . 44
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . 45
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . 46
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . 47
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . 48
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . 49
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . 50
SECTION 610. Resignation and Removal; Appointment of Successor . . 50
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . 52
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 53
SECTION 613. Preferential Collection of Claims Against Company . . 53
<PAGE> 7
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . 53
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . 55
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . 56
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . 56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . 57
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. 57
SECTION 802. Successor Person Substituted. . . . . . . . . . . . . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . 57
SECTION 901. Supplemental Indentures Without Consent of Holders. . 58
SECTION 902. Supplemental Indentures With Consent of Holders . . . 58
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . 60
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . 60
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . 60
SECTION 906. Reference in Securities to Supplemental Indentures. . 60
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1001. Payment of Principal, Premium and Interest . . . . . 60
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . 60
SECTION 1003. Money for Securities Payments to be Held in Trust. . 61
SECTION 1004. Existence. . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . . . 62
SECTION 1006. Payment of Taxes and Other Claims. . . . . . . . . . 63
SECTION 1007. Statement by Officers as to Default. . . . . . . . . 63
<PAGE> 8
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . . . . 63
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . 64
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . 64
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . 64
SECTION 1103. Selection by Trustee of Securities to be Redeemed. . 64
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . 65
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . 65
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . 66
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . 66
ARTICLE TWELVE
SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . 66
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . 67
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . . . 67
SECTION 1301. Securities Subordinate to Senior Indebtedness. . . . 67
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.. . . 68
SECTION 1303. No Payment When Senior Indebtedness in Default . . . 68
SECTION 1304. Payment Permitted if No Default. . . . . . . . . . . 68
SECTION 1305. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 69
SECTION 1306. Provisions Solely to Define Relative Rights. . . . . 69
SECTION 1307. Trustee to Effectuate Subordination. . . . . . . . . 69
SECTION 1308. No Waiver of Subordination Provisions. . . . . . . . 70
SECTION 1309. Notice to Trustee. . . . . . . . . . . . . . . . . . 70
<PAGE> 9
SECTION 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . . . . 71
SECTION 1311. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 71
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights . . . . . . . . . . 71
SECTION 1313. Article Applicable to Paying Agents. . . . . . . . . 72
SECTION 1314. Application by Trustee of Assets Deposited with It . 72
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . . . . . 72
SECTION 1401. Purposes for Which Meetings May Be Called. . . . . . 72
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . 72
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . 73
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . 73
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . 74
SECTION 1406. Counting Votes and Recording Action of Meetings. . . 74
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Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 10
THIS INDENTURE, dated as of , between LOUIS
------------- ----
DREYFUS NATURAL GAS CORP., a corporation duly organized and existing under the
laws of the State of Oklahoma (herein called the "Company"), having its
principal office at 14000 Quail Springs Parkway, Suite 600, Oklahoma City,
Oklahoma 73134, and , a duly organized and
---------------- --------------
existing under the laws of , as Trustee (herein called the
----------------
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, 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 subordinated indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 11
Certain terms, used principally in Article Six, are defined in Section
102.
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"Additional Amounts" means any additional amounts that are required by a
Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with respect
to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Book-Entry Security" 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.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or
obligated by law to close.
<PAGE> 12
"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" means the Person designated to hold a global
Security pursuant to Section 301.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President, its Chief Executive
Officer, its Chief Operating Officer, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"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 as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indebtedness", as applied to any Person, means without duplication, with
respect to any Person, the principal component of (a) all obligations of such
Person (i) in respect of borrowed money, whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof, (ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) for the payment of money representing the balance deferred and unpaid of
the purchase price of any property or services (other than accounts payable or
other obligations arising in the ordinary course of business), (iv) evidenced
by bankers acceptances or similar instruments issued or accepted by banks, (v)
for the payment of money relating to a capitalized lease obligations, or (vi)
evidenced by letter of credit or reimbursement obligation of such Person with
<PAGE> 13
respect to any letter of credit (other than a letter of credit entered into
for the purpose of providing security in connection with the forward purchase
and sale contracts or energy swaps with respect to the Company's oil and gas
business); (b) all net current obligations of such Person under interest rate
swap obligations and foreign currency hedges; (c) all liabilities of others of
the kind described in the preceding clauses (a) or (b) that such person has
guaranteed or that are otherwise its legal liability; (d) Indebtedness (as
otherwise defined in this definition) of others secured by a lien on any asset
of such Person (other than liens securing obligations of such person under
delivery contracts with respect to the Company's oil and gas business),
whether or not such Indebtedness is assumed by such Person (provided that if
the obligations so secured have not been assumed in full by such Person or are
not otherwise such Person's legal liability in full, then such obligation
shall be deemed to have been an amount equal to the greater of (A) the lesser
of (1) the full amount of such obligations and (2) the fair market value of
such asset, as determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a board resolution, and (B)
the amount of obligations as have been assumed by such Person or which are
otherwise such Person's legal liability), (e) such other items as are defined
in the terms of the particular series of Securities established pursuant to
Section 301 hereof; and (f) any and all deferrals, renewals, and extensions,
refinancings and refunding (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a) through (e) or this clause (f), whether or not
between or among the same parties.
"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.
"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.
"Judgment Currency" has the meaning specified in Section 506.
"Junior Subordinated Payment" means any payment or distribution which may
be payable or deliverable in respect of the Securities by reason of the
payment of any Indebtedness of the Company that is subordinate in right of
payment to the payment of the Securities.
"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.
"Obligation" of any Person means any obligation of such Person to pay
principal of or premium, if any, or interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
<PAGE> 14
relating to the Company, whether or not a claim for such post-petition
interest is allowed in such proceeding) on any Indebtedness or any penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts in
respect thereof.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer or a Vice
President, and by the Treasurer or Assistant Treasurer, the Controller,
Assistant Controller, the Secretary or Assistant Secretary of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however,
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
(c) 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent, determined on the date of
<PAGE> 15
original issuance of such Security, of the amount determined as provided in
clause (i) above), of such Security and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
"Payment Event of Default" means any default in the payment of principal
of or premium, if any, or interest on or fees with respect to any Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Permitted Junior Securities" means subordinated debt securities of the
Company (or any successor obligor with respect to the Senior Indebtedness)
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security, shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" means (subject to the last paragraph of Section 1302) (i)
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, (ii) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company.
<PAGE> 16
"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.
"Refinance" means, with respect to any specified Indebtedness, to incur
additional Indebtedness and use the proceeds thereof to redeem, repurchase,
retire for value, refinance or refund such specified Indebtedness (and the
term "Refinancing" and "Refinanced" shall have meanings correlative to the
foregoing.)
"Regular Record Date" for the interest payable on any Interest Payment
Date on any series means the date specified for that purpose as contemplated
by Section 301, or, if not so specified, the last day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
fifteenth day of the calendar month or the fifteenth day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be a Business
Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers, in each case with direct responsibility
for administration of this Indenture, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Payment" means any payment or distribution of any kind or
character, whether by way of set-off or otherwise and whether in cash,
property or securities (including any Junior Subordinated Payment) on account
of principal of or premium, if any, or interest on, or Additional Amounts with
respect to, the Securities or on account of any purchase, repurchase,
redemption or other acquisition of Securities, in any case whether by the
Company or by any other person on behalf of the Company.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means (i) all Indebtedness of the Company,
<PAGE> 17
including principal, premium, if any, interest and all other amounts owing in
respect of such Indebtedness (including interest that, but for the filing of a
petition initiating any proceeding pursuant to any bankruptcy law with respect
to the Company, would accrue on such Indebtedness at the contractual rate
provided in the instruments evidencing the respective obligations, whether or
not such claim is allowed in such bankruptcy proceeding), whether existing on
the date of issuance of any Securities or thereafter created, incurred or
assumed unless such Indebtedness by its terms or by the terms of the
instrument creating or evidencing it is subordinate in right of payment to or
is pari passu with the Securities; (ii) all reimbursement obligations of the
Company with respect to letters of credit not otherwise constituting
Indebtedness; (iii) all obligations of the Company pursuant to forward
purchase and sale contracts or energy swaps with respect to the Company's oil
and gas business, including obligations to deliver natural gas or other
commodities and liabilities for any breach of obligations under such
contracts; (iv) all charges, fees, expenses (including reasonable attorneys
fees and expenses) and other amounts incurred by or owing to holders of
Indebtedness or obligations described in the preceding clauses (i), (ii) and
(iii) in connection with such Indebtedness or obligations; (v) all interest
payable during the pendency of a proceeding under Title XI of the United
States Code on Indebtedness or obligations referred to in clauses (i), (ii)
and (iii) incurred prior to the commencement of such proceeding; and (vi) such
other indebtedness or obligations of the Company as defined in the terms for
the particular series of Securities established pursuant to Section 301
hereof. Notwithstanding the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to a Subsidiary of the Company, (ii)
Indebtedness of the Company to, or guaranteed on behalf of any Affiliate,
including without limitation amounts owed for compensation, and (iii) such
other Indebtedness or obligations as defined in the terms for the particular
series of Securities established pursuant to Section 301 hereof.
"Special Record Date" for the payment of any Defaulted Interest on the
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 representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal
or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Sections 905 and 1007.
"Trustee" means the Person named as the "Trustee" in the first paragraph
<PAGE> 18
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America (including the States
and the District of Columbia) and its "possessions", which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust,
or a foreign partnership.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding voting
stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"Indenture securities" means the Securities.
"Indenture security holder" means a Holder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
<PAGE> 19
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by Commission rule under the Trust Indenture Act
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
<PAGE> 20
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders.
(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. 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
the holding of any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1406.
The Company may set a record date for purposes of determining the
identity of Holders of Securities entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture, which record
date shall be the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons
who were Holders of Securities at such record date (or their duly designated
proxies), and only those persons, shall be entitled with respect to such
Securities to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.
(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
<PAGE> 21
sufficient proof of his authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 at the time the taking of such action by the Holders
of such requisite principal amount is evidenced to the Trustee for such
Securities.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent, waiver or other Act as to
such Holder's Security or portion thereof. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the Act
becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. Notice to Holders; Waiver.
<PAGE> 22
Where this Indenture provides for notice to Holders of Securities of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders of Securities if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
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
Securities by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders of 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 Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision hereof which is required to be
included in this Indenture by any of the provisions of the Trust Indenture
Act, such provision of the Trust Indenture Act shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders and holders of any Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
<PAGE> 23
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
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 payment of principal and interest (and premium and Additional
Amounts, if any,) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, shareholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor
of the Company or the Trustee with respect to the Company's obligations
on the Securities or the obligations of the Company or the Trustee under this
Indenture or any certificate or other writing delivered in connection
herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
All Securities shall be in registered form and each series shall be in
substantially such form or forms (including temporary or permanent global
form) as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued in global form as permitted by Section
304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the form or forms of
Securities 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).
The definitive Securities, shall be printed, lithographed or engraved on
<PAGE> 24
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
--------------------------------------------
as Trustee
By:
-----------------------------------------
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated by
Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
<PAGE> 25
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or of the Trustee shall treat a Person as the Holder of such principal amount
of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global
Security.
Global Securities may be issued in registered form and in either
temporary or permanent form. Permanent Global Securities will be issued in
definitive form.
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 or pursuant to 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."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(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);
<PAGE> 26
(3) 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 and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and the Common Depositary for any global Security or
Securities;
(4) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and, if other than as set forth in Section 101, the
Regular Record Date for the interest payable on any Securities on any
Interest Payment Date;
(6) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on, and any Additional Amounts with respect to, the Securities of
the series shall be payable;
(7) 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 redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which, Securities of the series shall be redeemed or purchased in
whole or in part pursuant to such obligation;
(9) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(10) the currency or currencies (including composite currencies)
in which payment of the principal of (and premium, if any) and interest
on, and any Additional Amounts with respect to, the Securities of the
series shall be payable if other than the currency of the United States
of America;
(11) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are stated
<PAGE> 27
to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to, Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of (and premium, if
any) or interest on, and any Additional Amounts with respect to, the
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 Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) 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;
(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or
403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the Events
of Default set forth in Section 501 or covenants of the Company set forth
in Article Ten pertaining to the Securities of the series;
(17) any modifications to the definitions of Indebtedness or Senior
Indebtedness or modifications to the subordination provisions in Article
Thirteen pertaining to the Securities of the series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
<PAGE> 28
together with such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the
series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of
such series denominated in Dollars shall be issuable in denominations of
$1,000 and any integral multiple thereof. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, any
Securities of a series denominated in a currency other than Dollars shall be
issuable in denominations that are the equivalent, as determined by the
Company by reference to the noon buying rate in The City of New York for cable
transfers for such currency, as such rate is reported or otherwise made
available by the Federal Reserve Bank of New York, on the applicable issue
date for such Securities, of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, its Chief
Executive Officer, its Chief Operating Officer, its Chief Financial Officer,
its Treasurer or one of its Vice Presidents, under its corporate seal
reproduced thereon or affixed thereto attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
<PAGE> 29
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form.
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
<PAGE> 30
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one
of the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities of such series. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. Bearer Securities may not be issued in
exchange for Securities.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interest for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that series in an
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 103 or be accompanied an Opinion of Counsel) by
<PAGE> 31
the Common Depositary or such other depositary or Common Depositary as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate, and deliver, in exchange for each portion of such permanent
global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged; 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. 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 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 (a) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) 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 Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchange pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (b)
to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
<PAGE> 32
Notwithstanding the foregoing and except as otherwise specified pursuant
to 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 (a) 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, (b) 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 (c) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be 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
clauses (a), (b) or (c) 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.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(b) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
<PAGE> 33
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(l) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such 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 Securities of such
series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
<PAGE> 34
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, 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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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 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 Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Permanent global Securities shall not be disposed of until exchanged in
full for definitive Securities or until payment thereon is made in full.
<PAGE> 35
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee as
trust funds, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, for the purpose
money or U.S. Government Obligations maturing as to principal a
and interest in such amounts and at such times as will, together
with the income to accrue thereon, without consideration of any
reinvestment thereof, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be;
or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
<PAGE> 36
of such series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Outstanding Securities of such
series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory sinking fund requirement, the trust
agreement shall provide therefor and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (l) of this
Section, the obligations of the Company under Sections 305, 306, 404, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest and Additional Amounts for the payment of which such
money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities
of such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium, if any) and
interest on Securities of such series, shall cease, terminate and be
completely discharged and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging such satisfaction and discharge,
when
<PAGE> 37
(1) the Company has complied with the provisions of Section 401
of this Indenture (other than any additional conditions specified
pursuant to Sections 301 and 401(3)) with respect to all Outstanding
Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
of such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, however, that, the Company shall not be
discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal or interest of (or premium, if any),
and any Additional Amounts with respect to, on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for
<PAGE> 38
such Event of Default and whether it shall be occasioned by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such
series:
(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when such interest or Additional
Amounts become due and payable, and continuance of such default for a
period of 60 days, whether or not such payment is prohibited by Article
Thirteen; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, whether or not such
payment is prohibited by Article Thirteen; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series, and continuance of such
default for a period of 60 days, whether or not such payment is
prohibited by Article Thirteen; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 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 all
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B)
a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
<PAGE> 39
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency
(or currencies) is (or are) not available to the Company for making payment
thereof due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Trustee by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"),
as such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made
under such circumstances in Dollars where the required payment is in a
currency other than Dollars will not constitute an Event of Default under this
Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (a) the series affected by such default (in the case
of an Event of Default described in clause (l), (2), (3) or (7) of Section
501) or (b) all series of Securities (in the case of other Events of Default)
may declare the principal amount (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of the series
affected by such default or all series, as the case may be, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
<PAGE> 40
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 60 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
<PAGE> 41
Securities for principal (and premium, if any) and interest and
Additional Amounts and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal (and premium,
if any) and on any overdue interest and Additional Amounts, at the rate
or rates prescribed therefor in such Securities (or in the case of
Original Issue Discount Securities, the Securities' Yield to Maturity),
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser
amount in the case of Original Issue Discount Securities) of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal
(or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
<PAGE> 42
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claim under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any), interest or any Additional Amounts, upon
presentation of the Securities, or both as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To holders of Senior Indebtedness to the extent required
by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), and interest and any Additional
Amounts on, the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose of
<PAGE> 43
obtaining judgment against the Company in any court it is necessary to convert
the sum due in respect of the principal of (or premium, if any) or interest on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously
given written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
<PAGE> 44
Interest.
Subject to Article Thirteen and notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect to
all Securities the Holders of a majority in principal amount of all
<PAGE> 45
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series
relating to or arising under an Event of Default described in clause (3) or
(7) of Section 501 and its consequences, and the Holders of a majority in
principal amount of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
older of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts with respect
to, any Security on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
<PAGE> 46
Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(l) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
<PAGE> 47
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest on, or any Additional Amount with, any Security
of such series or in the payment of any sinking fund installment with respect
to Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided, further, that in
the case of any default of the character specified in Section 501(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, 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;
<PAGE> 48
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
<PAGE> 49
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if
any, on, or Additional Amounts with respect to, particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Act.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
<PAGE> 50
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series,
as their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series the Indenture of the Company dated as of June 15, 1994, if applicable,
this Indenture with respect to the Securities of any series other than that
series, and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
<PAGE> 51
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(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 of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and such
successor Trustee or Trustees shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
<PAGE> 52
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust 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 any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
<PAGE> 53
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia;
and shall be authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 or equivalent
amount expressed in a foreign currency and subject to supervision or
<PAGE> 54
examination by federal or state authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
<PAGE> 55
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------------------------
As Trustee
By:
-------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signatory"
Notwithstanding any provision of this Section 614 to the contrary, if at
any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar, if so acting.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
<PAGE> 56
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders of each series received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b) of
the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the first
May 15 following the issuance of the first series of Securities hereunder, the
Trustee shall transmit by mail to Holders a brief report dated as of such May
15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust Indenture
Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(l) to all Holders of Securities, as the names and addresses of
such Holders appear in the Security Register; and
(2) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
<PAGE> 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(l) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially
as an entirety shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States of America,
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 premium, if any) and interest (including
all Additional Amounts, if any) on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the
case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<PAGE> 58
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(l) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which
such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) 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
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other
provisions as may be made shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
<PAGE> 59
the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional
Amounts (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
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 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.
<PAGE> 60
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
<PAGE> 61
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, the Company will, on or before each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such default, upon
<PAGE> 62
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
<PAGE> 63
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers
thereof and whether or not to the best of their knowledge the Company is in
default in the fulfillment of any of its obligations under this Indenture, and
if the Company shall be in default, specifying each such default known to them
and the nature and status thereof.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series
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 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
<PAGE> 64
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 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 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 and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
<PAGE> 65
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series or of
the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 107
to 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,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
A notice of redemption as contemplated by Section 107 need not identify
particular 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.
<PAGE> 66
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, maturing after
the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest (and any Additional Amounts)
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and Stated
Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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
<PAGE> 67
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (b) 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, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, whether upon original issue or upon transfer or
assignment, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth, the payment of the principal of (and premium, if
any) and interest on, and any Additional Amounts with respect to, each and all
<PAGE> 68
of the Securities and the payment of any coupon is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.
The payment of the principal of and premium, if any, and interest on the
Securities is, to the extent set forth herein and in any applicable terms of
the Securities established pursuant to Section 301 hereof, subordinated in
right of payment to the prior payment in full of all Senior Indebtedness,
whether now outstanding or incurred in the future. Upon any payment or
distribution of assets of the Company to creditors in connection with a
Proceeding, the holders of all Senior Indebtedness will first be entitled to
receive any payment in full of all amounts due or to become due thereon in
cash, or such payment duly provided for, before any Securities Payment.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a Proceeding for the purposes of
this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1303. No Payment When Senior Indebtedness in Default.
If a Payment Event of Default shall have occurred and be continuing, no
Securities Payment (other than in Permitted Junior Securities) shall be made.
In the event that, notwithstanding the restriction described in the preceding
sentence, payment is made to the Trustee or a Holder of Securities prohibited
by any such restriction, then such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (prorated to such holders on the basis of the respective amount
of Senior Indebtedness held by such holders) or their representatives, if any,
as their respective interests may appear.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1304. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the
Holders, if, at the time of such application by the Trustee, it did not have
actual knowledge that such Securities Payment would have been prohibited by
the provisions of this Article.
<PAGE> 69
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due and to become due on or
in respect of Senior Indebtedness, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on, and any Additional Amounts
with respect to, the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article
to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations
of the Company), to pay to the Holders of the Securities the principal of and
premium, if any, and interest on, and any Additional Amounts with respect to,
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the occurrence of an Event of Default
or prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof, whether upon
original issue or upon transfer or assignment, authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate, as between the Holders of the Securities and the holders of
Senior Indebtedness, the subordination provided in this Article and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding up or liquidation or reorganization
<PAGE> 70
under any applicable bankruptcy law of the Company (whether in bankruptcy,
insolvency or receivership proceedings or otherwise), the timely filing of a
claim for the unpaid balance of such Holder's Securities in the form required
in such proceedings and the causing of such claim to be approved. If the
Trustee does not file a claim or proof of debt in the form required in such
proceedings prior to 10 days before the expiration of the time to file such
claims of proofs, then the holders of Senior Indebtedness, jointly, or their
representative shall have the right to file an appropriate claim for and on
behalf of the Holders. Nothing contained herein shall be construed to
authorize the Trustee or the holders of Senior Indebtedness to authorize or
consent to or to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder or to authorize the Trustee or the
holders of Senior Indebtedness to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with. Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement
in any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for
the collection of Senior Indebtedness and settle or compromise Senior
Indebtedness (which, to the extent so settled and compromised, shall be deemed
to have been paid in full for all purposes hereof); (d) apply any amounts
received to any liability of the Company owing to holders of Senior
Indebtedness; and (e) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1309. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
default or event of default with respect to any Senior Indebtedness or of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
<PAGE> 71
thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section
at least five Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation,
the payment of the principal of and premium, if any, or interest on any
Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it within
five Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which any Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness.
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
<PAGE> 72
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1313. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1312 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1314. Application by Trustee of Assets Deposited with It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 401 shall be for the sole
benefit of the Holders and shall not be subject to this Article. Otherwise,
any deposit of assets by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any Securities
shall be subject to the provisions of this Article.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such
time and at such place in the city in which the Corporate Trust Office is
located, in the Borough of Manhattan, the City of New York, or in London, or
in such other location as the Trustee shall reasonably determine. Notice of
every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 107,
not less than 20 nor more than 180 days prior to the date fixed for the
meeting (or, in the case of a meeting of Holders with respect to Securities of
a series all or part of which are represented by a Book-Entry Security, not
<PAGE> 73
less than 20 nor more than 40 days).
(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
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the city in which the Corporate Trust
Office is located, in the Borough of Manhattan, the City of New York, or in
London, or in such other place as the Company or such Holders shall reasonably
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 Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum. Notwithstanding the
foregoing, no meeting of Holders with respect to Securities of any series
which is represented in whole or in part by a Book-Entry Security shall be
adjourned to a date more than 90 days after the date on which notice of such
meeting was originally given in accordance with Section 1402 unless the
Trustee shall send out a new notice of meeting.
<PAGE> 74
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage that is
less than a majority in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the
meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified in
Section 105 and the appointment of any proxy shall be proved in the manner
specified in Section 105. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
<PAGE> 75
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section 1402
and, if applicable, Section 1404. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * *
<PAGE> 76
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LOUIS DREYFUS NATURAL GAS CORP.
(CORPORATE SEAL) By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
----------------------------------------------
(CORPORATE SEAL) By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
<PAGE>
<PAGE> 77
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
On the day of , , before me personally came,
------- ---------- ----
to me known, who, being by me duly sworn, did depose and say
- --------------
that he is of LOUIS DREYFUS NATURAL GAS CORP., one of the
-----------------
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------------------
Notary Public in Oklahoma County for the
State of Oklahoma
My Commission Expires
------------------------
(NOTARIAL SEAL)
STATE OF )
--------------
) ss.
COUNTY OF )
---------------
On the day of , , before me personally came,
---------- ------------ ----
to me known, who, being by me duly sworn, did depose and say
- --------------
that he is of , the corporations described in and
-------------- -------------
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------------
Notary Public in County for the
------------
State of
-------------------
My Commission Expires
------------------------
(NOTARIAL SEAL)
<PAGE> 1
EXHIBIT 4.8
LOUIS DREYFUS NATURAL GAS CORP.,
AS ISSUER
AND
-------------------------------,
AS TRUSTEE
INDENTURE
DATED AS OF ,
------------ ----
SUBORDINATED DEBT SECURITIES
<PAGE> 2
LOUIS DREYFUS NATURAL GAS CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ,
--------- ----
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
Section 310 (a)(1).................................. 609
(a)(2).................................. 609
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 608, 610
Section 311 (a)..................................... 613
(b)..................................... 613
Section 312 (a)..................................... 701, 702(a)
(b)..................................... 702(b)
(c)..................................... 702(c)
Section 313 (a)..................................... 703(a)
(b)..................................... 703(b)
(c)..................................... 703(c)
(d)..................................... 703(d)
Section 314 (a)..................................... 704
(b)..................................... Not Applicable
(c)(1).................................. 103
(c)(2).................................. 103
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 103
Section 315 (a)..................................... 601(a)
(b)..................................... 602, 703(a)
(c)..................................... 601(b)
(d)..................................... 601(c)
(d)(1).................................. 601(a)(1)
(d)(2).................................. 601(c)(2)
(d)(3).................................. 601(c)(3)
(e)..................................... 514
Section 316 (a)(l)(A)............................... 502, 512
(a)(1)(B)............................... 513
(a)(2).................................. Not Applicable
(b)..................................... 508
Section 317 (a)(1).................................. 503
(a)(2).................................. 504
(b)..................................... 1003
Section 318 (a)..................................... 108
- -----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . 10
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . 10
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . 11
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . 11
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . 11
Board of Directors. . . . . . . . . . . . . . . . . . . . . . 11
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . 11
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . 11
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . 11
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Common Depositary . . . . . . . . . . . . . . . . . . . . . . 12
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Company Request . . . . . . . . . . . . . . . . . . . . . . . 12
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . 12
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 12
Depository. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default. . . . . . . . . . . . . . . . . . . . . . . 12
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 12
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 13
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . 13
Junior Subordinated Payment . . . . . . . . . . . . . . . . . 13
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . 13
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 14
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 14
Original Issue Discount Security. . . . . . . . . . . . . . . 14
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 14
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . 15
Payment Event of Default. . . . . . . . . . . . . . . . . . . 15
Permitted Junior Securities . . . . . . . . . . . . . . . . . 15
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . 15
Predecessor Security. . . . . . . . . . . . . . . . . . . . . 15
Proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 16
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . 16
Refinance . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 16
Required Currency . . . . . . . . . . . . . . . . . . . . . . 16
<PAGE> 4
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 16
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Securities Payment. . . . . . . . . . . . . . . . . . . . . . 16
Security Register" and "Security Registrar. . . . . . . . . . 16
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 16
Special Record Date . . . . . . . . . . . . . . . . . . . . . 17
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 17
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 17
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States . . . . . . . . . . . . . . . . . . . . . . . . 18
United States Alien . . . . . . . . . . . . . . . . . . . . . 18
U.S. Government Obligations . . . . . . . . . . . . . . . . . 18
Vice President. . . . . . . . . . . . . . . . . . . . . . . . 18
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . 18
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 102. Incorporation by Reference of Trust Indenture Act. . 18
Bankruptcy Act. . . . . . . . . . . . . . . . . . . . . . . . 18
Indenture securities. . . . . . . . . . . . . . . . . . . . . 18
Indenture security holder . . . . . . . . . . . . . . . . . . 18
Indenture to be qualified . . . . . . . . . . . . . . . . . . 18
Indenture trustee" or "institutional trustee. . . . . . . . . 18
Obligor . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 103. Compliance Certificates and Opinions . . . . . . . . 19
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . 19
SECTION 105. Acts of Holders. . . . . . . . . . . . . . . . . . . 20
SECTION 106. Notices, Etc., to Trustee and Company. . . . . . . . 21
SECTION 107. Notice to Holders; Waiver. . . . . . . . . . . . . . 21
SECTION 108. Conflict With Trust Indenture Act. . . . . . . . . . 22
SECTION 109. Effect of Headings and Table of Contents . . . . . . 22
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . 22
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . 22
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . 22
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . 23
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . 23
SECTION 115. Corporate Obligation . . . . . . . . . . . . . . . . 23
ARTICLE TWO
SECURITY FORMS. . . . . . . . . . . . . . . . . . . . . . . . 23
<PAGE> 5
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . 23
SECTION 202. Form of Trustee's Certificate of Authentication. . . 24
SECTION 203. Securities in Global Form. . . . . . . . . . . . . . 24
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . 25
ARTICLE THREE
THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 25
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . 28
SECTION 303. Execution, Authentication, Delivery and Dating . . . 28
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 32
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 33
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 34
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . 35
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . 36
SECTION 403. Discharge of Liability on Securities of Any Series . 36
SECTION 404. Reinstatement. . . . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and Annulment . 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 41
<PAGE> 6
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 506. Application of Money Collected. . . . . . . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 43
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . 44
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . 44
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . 45
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . 46
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . 47
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . 48
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . 49
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . 50
SECTION 610. Resignation and Removal; Appointment of Successor . . 50
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . 52
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 53
SECTION 613. Preferential Collection of Claims Against Company . . 53
<PAGE> 7
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . 53
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . 55
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . 56
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . 56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . 57
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. 57
SECTION 802. Successor Person Substituted. . . . . . . . . . . . . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . 57
SECTION 901. Supplemental Indentures Without Consent of Holders. . 58
SECTION 902. Supplemental Indentures With Consent of Holders . . . 58
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . 60
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . 60
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . 60
SECTION 906. Reference in Securities to Supplemental Indentures. . 60
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1001. Payment of Principal, Premium and Interest . . . . . 60
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . 60
SECTION 1003. Money for Securities Payments to be Held in Trust. . 61
SECTION 1004. Existence. . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1005. Maintenance of Properties. . . . . . . . . . . . . . 62
SECTION 1006. Payment of Taxes and Other Claims. . . . . . . . . . 63
SECTION 1007. Statement by Officers as to Default. . . . . . . . . 63
<PAGE> 8
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . . . . 63
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . 64
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . 64
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . 64
SECTION 1103. Selection by Trustee of Securities to be Redeemed. . 64
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . 65
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . 65
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . 66
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . 66
ARTICLE TWELVE
SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . 66
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . 67
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . . . 67
SECTION 1301. Securities Subordinate to Senior Indebtedness. . . . 67
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.. . . 68
SECTION 1303. No Payment When Senior Indebtedness in Default . . . 68
SECTION 1304. Payment Permitted if No Default. . . . . . . . . . . 68
SECTION 1305. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 69
SECTION 1306. Provisions Solely to Define Relative Rights. . . . . 69
SECTION 1307. Trustee to Effectuate Subordination. . . . . . . . . 69
SECTION 1308. No Waiver of Subordination Provisions. . . . . . . . 70
SECTION 1309. Notice to Trustee. . . . . . . . . . . . . . . . . . 70
<PAGE> 9
SECTION 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . . . . 71
SECTION 1311. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 71
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights . . . . . . . . . . 71
SECTION 1313. Article Applicable to Paying Agents. . . . . . . . . 72
SECTION 1314. Application by Trustee of Assets Deposited with It . 72
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . . . . . 72
SECTION 1401. Purposes for Which Meetings May Be Called. . . . . . 72
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . 72
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . 73
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . 73
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . 74
SECTION 1406. Counting Votes and Recording Action of Meetings. . . 74
- ---------------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<PAGE> 10
THIS INDENTURE, dated as of , between LOUIS
------------- ----
DREYFUS NATURAL GAS CORP., a corporation duly organized and existing under the
laws of the State of Oklahoma (herein called the "Company"), having its
principal office at 14000 Quail Springs Parkway, Suite 600, Oklahoma City,
Oklahoma 73134, and , a duly organized and
---------------- --------------
existing under the laws of , as Trustee (herein called the
----------------
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, 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 subordinated indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
<PAGE> 11
Certain terms, used principally in Article Six, are defined in Section
102.
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"Additional Amounts" means any additional amounts that are required by a
Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with respect
to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Book-Entry Security" 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.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or
obligated by law to close.
<PAGE> 12
"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" means the Person designated to hold a global
Security pursuant to Section 301.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President, its Chief Executive
Officer, its Chief Operating Officer, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"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 as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indebtedness", as applied to any Person, means without duplication, with
respect to any Person, the principal component of (a) all obligations of such
Person (i) in respect of borrowed money, whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof, (ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) for the payment of money representing the balance deferred and unpaid of
the purchase price of any property or services (other than accounts payable or
other obligations arising in the ordinary course of business), (iv) evidenced
by bankers acceptances or similar instruments issued or accepted by banks, (v)
for the payment of money relating to a capitalized lease obligations, or (vi)
evidenced by letter of credit or reimbursement obligation of such Person with
<PAGE> 13
respect to any letter of credit (other than a letter of credit entered into
for the purpose of providing security in connection with the forward purchase
and sale contracts or energy swaps with respect to the Company's oil and gas
business); (b) all net current obligations of such Person under interest rate
swap obligations and foreign currency hedges; (c) all liabilities of others of
the kind described in the preceding clauses (a) or (b) that such person has
guaranteed or that are otherwise its legal liability; (d) Indebtedness (as
otherwise defined in this definition) of others secured by a lien on any asset
of such Person (other than liens securing obligations of such person under
delivery contracts with respect to the Company's oil and gas business),
whether or not such Indebtedness is assumed by such Person (provided that if
the obligations so secured have not been assumed in full by such Person or are
not otherwise such Person's legal liability in full, then such obligation
shall be deemed to have been an amount equal to the greater of (A) the lesser
of (1) the full amount of such obligations and (2) the fair market value of
such asset, as determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a board resolution, and (B)
the amount of obligations as have been assumed by such Person or which are
otherwise such Person's legal liability), (e) such other items as are defined
in the terms of the particular series of Securities established pursuant to
Section 301 hereof; and (f) any and all deferrals, renewals, and extensions,
refinancings and refunding (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a) through (e) or this clause (f), whether or not
between or among the same parties.
"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.
"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.
"Judgment Currency" has the meaning specified in Section 506.
"Junior Subordinated Payment" means any payment or distribution which may
be payable or deliverable in respect of the Securities by reason of the
payment of any Indebtedness of the Company that is subordinate in right of
payment to the payment of the Securities.
"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.
"Obligation" of any Person means any obligation of such Person to pay
principal of or premium, if any, or interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
<PAGE> 14
relating to the Company, whether or not a claim for such post-petition
interest is allowed in such proceeding) on any Indebtedness or any penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts in
respect thereof.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer or a Vice
President, and by the Treasurer or Assistant Treasurer, the Controller,
Assistant Controller, the Secretary or Assistant Secretary of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however,
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
(c) 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent, determined on the date of
<PAGE> 15
original issuance of such Security, of the amount determined as provided in
clause (i) above), of such Security and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
"Payment Event of Default" means any default in the payment of principal
of or premium, if any, or interest on or fees with respect to any Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Permitted Junior Securities" means subordinated debt securities of the
Company (or any successor obligor with respect to the Senior Indebtedness)
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security, shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" means (subject to the last paragraph of Section 1302) (i)
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, (ii) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company.
<PAGE> 16
"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.
"Refinance" means, with respect to any specified Indebtedness, to incur
additional Indebtedness and use the proceeds thereof to redeem, repurchase,
retire for value, refinance or refund such specified Indebtedness (and the
term "Refinancing" and "Refinanced" shall have meanings correlative to the
foregoing.)
"Regular Record Date" for the interest payable on any Interest Payment
Date on any series means the date specified for that purpose as contemplated
by Section 301, or, if not so specified, the last day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
fifteenth day of the calendar month or the fifteenth day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be a Business
Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers, in each case with direct responsibility
for administration of this Indenture, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Payment" means any payment or distribution of any kind or
character, whether by way of set-off or otherwise and whether in cash,
property or securities (including any Junior Subordinated Payment) on account
of principal of or premium, if any, or interest on, or Additional Amounts with
respect to, the Securities or on account of any purchase, repurchase,
redemption or other acquisition of Securities, in any case whether by the
Company or by any other person on behalf of the Company.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means (i) all Indebtedness of the Company,
<PAGE> 17
including principal, premium, if any, interest and all other amounts owing in
respect of such Indebtedness (including interest that, but for the filing of a
petition initiating any proceeding pursuant to any bankruptcy law with respect
to the Company, would accrue on such Indebtedness at the contractual rate
provided in the instruments evidencing the respective obligations, whether or
not such claim is allowed in such bankruptcy proceeding), whether existing on
the date of issuance of any Securities or thereafter created, incurred or
assumed unless such Indebtedness by its terms or by the terms of the
instrument creating or evidencing it is subordinate in right of payment to or
is pari passu with the Securities; (ii) all reimbursement obligations of the
Company with respect to letters of credit not otherwise constituting
Indebtedness; (iii) all obligations of the Company pursuant to forward
purchase and sale contracts or energy swaps with respect to the Company's oil
and gas business, including obligations to deliver natural gas or other
commodities and liabilities for any breach of obligations under such
contracts; (iv) all charges, fees, expenses (including reasonable attorneys
fees and expenses) and other amounts incurred by or owing to holders of
Indebtedness or obligations described in the preceding clauses (i), (ii) and
(iii) in connection with such Indebtedness or obligations; (v) all interest
payable during the pendency of a proceeding under Title XI of the United
States Code on Indebtedness or obligations referred to in clauses (i), (ii)
and (iii) incurred prior to the commencement of such proceeding; and (vi) such
other indebtedness or obligations of the Company as defined in the terms for
the particular series of Securities established pursuant to Section 301
hereof. Notwithstanding the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to a Subsidiary of the Company, (ii)
Indebtedness of the Company to, or guaranteed on behalf of any Affiliate,
including without limitation amounts owed for compensation, and (iii) such
other Indebtedness or obligations as defined in the terms for the particular
series of Securities established pursuant to Section 301 hereof.
"Special Record Date" for the payment of any Defaulted Interest on the
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 representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal
or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Sections 905 and 1007.
"Trustee" means the Person named as the "Trustee" in the first paragraph
<PAGE> 18
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America (including the States
and the District of Columbia) and its "possessions", which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust,
or a foreign partnership.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding voting
stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"Indenture securities" means the Securities.
"Indenture security holder" means a Holder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
<PAGE> 19
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by Commission rule under the Trust Indenture Act
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
<PAGE> 20
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders.
(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. 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
the holding of any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1406.
The Company may set a record date for purposes of determining the
identity of Holders of Securities entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture, which record
date shall be the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons
who were Holders of Securities at such record date (or their duly designated
proxies), and only those persons, shall be entitled with respect to such
Securities to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.
(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
<PAGE> 21
sufficient proof of his authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 at the time the taking of such action by the Holders
of such requisite principal amount is evidenced to the Trustee for such
Securities.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent, waiver or other Act as to
such Holder's Security or portion thereof. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the Act
becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. Notice to Holders; Waiver.
<PAGE> 22
Where this Indenture provides for notice to Holders of Securities of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders of Securities if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
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
Securities by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders of 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 Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision hereof which is required to be
included in this Indenture by any of the provisions of the Trust Indenture
Act, such provision of the Trust Indenture Act shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders and holders of any Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
<PAGE> 23
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
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 payment of principal and interest (and premium and Additional
Amounts, if any,) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, shareholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor
of the Company or the Trustee with respect to the Company's obligations
on the Securities or the obligations of the Company or the Trustee under this
Indenture or any certificate or other writing delivered in connection
herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
All Securities shall be in registered form and each series shall be in
substantially such form or forms (including temporary or permanent global
form) as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued in global form as permitted by Section
304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the form or forms of
Securities 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).
The definitive Securities, shall be printed, lithographed or engraved on
<PAGE> 24
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
--------------------------------------------
as Trustee
By:
-----------------------------------------
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated by
Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
<PAGE> 25
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or of the Trustee shall treat a Person as the Holder of such principal amount
of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global
Security.
Global Securities may be issued in registered form and in either
temporary or permanent form. Permanent Global Securities will be issued in
definitive form.
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 or pursuant to 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."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(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);
<PAGE> 26
(3) 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 and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and the Common Depositary for any global Security or
Securities;
(4) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable or the method of
determination thereof;
(5) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and, if other than as set forth in Section 101, the
Regular Record Date for the interest payable on any Securities on any
Interest Payment Date;
(6) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on, and any Additional Amounts with respect to, the Securities of
the series shall be payable;
(7) 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 redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which, Securities of the series shall be redeemed or purchased in
whole or in part pursuant to such obligation;
(9) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(10) the currency or currencies (including composite currencies)
in which payment of the principal of (and premium, if any) and interest
on, and any Additional Amounts with respect to, the Securities of the
series shall be payable if other than the currency of the United States
of America;
(11) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are stated
<PAGE> 27
to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to, Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of (and premium, if
any) or interest on, and any Additional Amounts with respect to, the
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 Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) 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;
(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or
403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the Events
of Default set forth in Section 501 or covenants of the Company set forth
in Article Ten pertaining to the Securities of the series;
(17) any modifications to the definitions of Indebtedness or Senior
Indebtedness or modifications to the subordination provisions in Article
Thirteen pertaining to the Securities of the series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
<PAGE> 28
together with such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the
series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of
such series denominated in Dollars shall be issuable in denominations of
$1,000 and any integral multiple thereof. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, any
Securities of a series denominated in a currency other than Dollars shall be
issuable in denominations that are the equivalent, as determined by the
Company by reference to the noon buying rate in The City of New York for cable
transfers for such currency, as such rate is reported or otherwise made
available by the Federal Reserve Bank of New York, on the applicable issue
date for such Securities, of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, its Chief
Executive Officer, its Chief Operating Officer, its Chief Financial Officer,
its Treasurer or one of its Vice Presidents, under its corporate seal
reproduced thereon or affixed thereto attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
<PAGE> 29
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form.
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
<PAGE> 30
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one
of the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities of such series. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. Bearer Securities may not be issued in
exchange for Securities.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interest for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that series in an
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 103 or be accompanied an Opinion of Counsel) by
<PAGE> 31
the Common Depositary or such other depositary or Common Depositary as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate, and deliver, in exchange for each portion of such permanent
global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged; 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. 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 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 (a) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) 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 Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchange pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (b)
to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
<PAGE> 32
Notwithstanding the foregoing and except as otherwise specified pursuant
to 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 (a) 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, (b) 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 (c) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be 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
clauses (a), (b) or (c) 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.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(b) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
<PAGE> 33
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(l) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such 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 Securities of such
series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
<PAGE> 34
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, 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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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 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 Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Permanent global Securities shall not be disposed of until exchanged in
full for definitive Securities or until payment thereon is made in full.
<PAGE> 35
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee as
trust funds, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, for the purpose
money or U.S. Government Obligations maturing as to principal a
and interest in such amounts and at such times as will, together
with the income to accrue thereon, without consideration of any
reinvestment thereof, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be;
or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
<PAGE> 36
of such series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Outstanding Securities of such
series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory sinking fund requirement, the trust
agreement shall provide therefor and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (l) of this
Section, the obligations of the Company under Sections 305, 306, 404, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest and Additional Amounts for the payment of which such
money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities
of such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium, if any) and
interest on Securities of such series, shall cease, terminate and be
completely discharged and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging such satisfaction and discharge,
when
<PAGE> 37
(1) the Company has complied with the provisions of Section 401
of this Indenture (other than any additional conditions specified
pursuant to Sections 301 and 401(3)) with respect to all Outstanding
Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
of such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, however, that, the Company shall not be
discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal or interest of (or premium, if any),
and any Additional Amounts with respect to, on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for
<PAGE> 38
such Event of Default and whether it shall be occasioned by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such
series:
(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when such interest or Additional
Amounts become due and payable, and continuance of such default for a
period of 60 days, whether or not such payment is prohibited by Article
Thirteen; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, whether or not such
payment is prohibited by Article Thirteen; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series, and continuance of such
default for a period of 60 days, whether or not such payment is
prohibited by Article Thirteen; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 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 all
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B)
a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
<PAGE> 39
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency
(or currencies) is (or are) not available to the Company for making payment
thereof due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Trustee by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"),
as such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made
under such circumstances in Dollars where the required payment is in a
currency other than Dollars will not constitute an Event of Default under this
Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (a) the series affected by such default (in the case
of an Event of Default described in clause (l), (2), (3) or (7) of Section
501) or (b) all series of Securities (in the case of other Events of Default)
may declare the principal amount (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of the series
affected by such default or all series, as the case may be, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
<PAGE> 40
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 60 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
<PAGE> 41
Securities for principal (and premium, if any) and interest and
Additional Amounts and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal (and premium,
if any) and on any overdue interest and Additional Amounts, at the rate
or rates prescribed therefor in such Securities (or in the case of
Original Issue Discount Securities, the Securities' Yield to Maturity),
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser
amount in the case of Original Issue Discount Securities) of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal
(or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
<PAGE> 42
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claim under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any), interest or any Additional Amounts, upon
presentation of the Securities, or both as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To holders of Senior Indebtedness to the extent required
by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), and interest and any Additional
Amounts on, the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose of
<PAGE> 43
obtaining judgment against the Company in any court it is necessary to convert
the sum due in respect of the principal of (or premium, if any) or interest on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously
given written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
<PAGE> 44
Interest.
Subject to Article Thirteen and notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect to
all Securities the Holders of a majority in principal amount of all
<PAGE> 45
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series
relating to or arising under an Event of Default described in clause (3) or
(7) of Section 501 and its consequences, and the Holders of a majority in
principal amount of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
older of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts with respect
to, any Security on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
<PAGE> 46
Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(l) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
<PAGE> 47
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest on, or any Additional Amount with, any Security
of such series or in the payment of any sinking fund installment with respect
to Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided, further, that in
the case of any default of the character specified in Section 501(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, 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;
<PAGE> 48
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
<PAGE> 49
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if
any, on, or Additional Amounts with respect to, particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Act.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
<PAGE> 50
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series,
as their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series the Indenture of the Company dated as of June 15, 1994, if applicable,
this Indenture with respect to the Securities of any series other than that
series, and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
<PAGE> 51
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(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 of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and such
successor Trustee or Trustees shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
<PAGE> 52
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust 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 any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
<PAGE> 53
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia;
and shall be authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 or equivalent
amount expressed in a foreign currency and subject to supervision or
<PAGE> 54
examination by federal or state authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
<PAGE> 55
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------------------------
As Trustee
By:
-------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signatory"
Notwithstanding any provision of this Section 614 to the contrary, if at
any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar, if so acting.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
<PAGE> 56
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders of each series received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b) of
the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the first
May 15 following the issuance of the first series of Securities hereunder, the
Trustee shall transmit by mail to Holders a brief report dated as of such May
15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust Indenture
Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(l) to all Holders of Securities, as the names and addresses of
such Holders appear in the Security Register; and
(2) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
<PAGE> 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(l) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially
as an entirety shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States of America,
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 premium, if any) and interest (including
all Additional Amounts, if any) on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the
case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<PAGE> 58
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(l) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which
such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) 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
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other
provisions as may be made shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
<PAGE> 59
the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional
Amounts (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
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 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.
<PAGE> 60
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
<PAGE> 61
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, the Company will, on or before each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such default, upon
<PAGE> 62
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
<PAGE> 63
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers
thereof and whether or not to the best of their knowledge the Company is in
default in the fulfillment of any of its obligations under this Indenture, and
if the Company shall be in default, specifying each such default known to them
and the nature and status thereof.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series
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 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
<PAGE> 64
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 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 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 and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
<PAGE> 65
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series or of
the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 107
to 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,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
A notice of redemption as contemplated by Section 107 need not identify
particular 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.
<PAGE> 66
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, maturing after
the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest (and any Additional Amounts)
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and Stated
Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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
<PAGE> 67
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (b) 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, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, whether upon original issue or upon transfer or
assignment, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth, the payment of the principal of (and premium, if
any) and interest on, and any Additional Amounts with respect to, each and all
<PAGE> 68
of the Securities and the payment of any coupon is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.
The payment of the principal of and premium, if any, and interest on the
Securities is, to the extent set forth herein and in any applicable terms of
the Securities established pursuant to Section 301 hereof, subordinated in
right of payment to the prior payment in full of all Senior Indebtedness,
whether now outstanding or incurred in the future. Upon any payment or
distribution of assets of the Company to creditors in connection with a
Proceeding, the holders of all Senior Indebtedness will first be entitled to
receive any payment in full of all amounts due or to become due thereon in
cash, or such payment duly provided for, before any Securities Payment.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a Proceeding for the purposes of
this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1303. No Payment When Senior Indebtedness in Default.
If a Payment Event of Default shall have occurred and be continuing, no
Securities Payment (other than in Permitted Junior Securities) shall be made.
In the event that, notwithstanding the restriction described in the preceding
sentence, payment is made to the Trustee or a Holder of Securities prohibited
by any such restriction, then such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (prorated to such holders on the basis of the respective amount
of Senior Indebtedness held by such holders) or their representatives, if any,
as their respective interests may appear.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
SECTION 1304. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the
Holders, if, at the time of such application by the Trustee, it did not have
actual knowledge that such Securities Payment would have been prohibited by
the provisions of this Article.
<PAGE> 69
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due and to become due on or
in respect of Senior Indebtedness, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on, and any Additional Amounts
with respect to, the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article
to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations
of the Company), to pay to the Holders of the Securities the principal of and
premium, if any, and interest on, and any Additional Amounts with respect to,
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the occurrence of an Event of Default
or prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof, whether upon
original issue or upon transfer or assignment, authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate, as between the Holders of the Securities and the holders of
Senior Indebtedness, the subordination provided in this Article and appoints
the Trustee his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding up or liquidation or reorganization
<PAGE> 70
under any applicable bankruptcy law of the Company (whether in bankruptcy,
insolvency or receivership proceedings or otherwise), the timely filing of a
claim for the unpaid balance of such Holder's Securities in the form required
in such proceedings and the causing of such claim to be approved. If the
Trustee does not file a claim or proof of debt in the form required in such
proceedings prior to 10 days before the expiration of the time to file such
claims of proofs, then the holders of Senior Indebtedness, jointly, or their
representative shall have the right to file an appropriate claim for and on
behalf of the Holders. Nothing contained herein shall be construed to
authorize the Trustee or the holders of Senior Indebtedness to authorize or
consent to or to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder or to authorize the Trustee or the
holders of Senior Indebtedness to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with. Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement
in any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for
the collection of Senior Indebtedness and settle or compromise Senior
Indebtedness (which, to the extent so settled and compromised, shall be deemed
to have been paid in full for all purposes hereof); (d) apply any amounts
received to any liability of the Company owing to holders of Senior
Indebtedness; and (e) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1309. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
default or event of default with respect to any Senior Indebtedness or of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
<PAGE> 71
thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section
at least five Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation,
the payment of the principal of and premium, if any, or interest on any
Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it within
five Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which any Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness.
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
<PAGE> 72
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1313. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1312 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1314. Application by Trustee of Assets Deposited with It.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 401 shall be for the sole
benefit of the Holders and shall not be subject to this Article. Otherwise,
any deposit of assets by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any Securities
shall be subject to the provisions of this Article.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such
time and at such place in the city in which the Corporate Trust Office is
located, in the Borough of Manhattan, the City of New York, or in London, or
in such other location as the Trustee shall reasonably determine. Notice of
every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 107,
not less than 20 nor more than 180 days prior to the date fixed for the
meeting (or, in the case of a meeting of Holders with respect to Securities of
a series all or part of which are represented by a Book-Entry Security, not
<PAGE> 73
less than 20 nor more than 40 days).
(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
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the city in which the Corporate Trust
Office is located, in the Borough of Manhattan, the City of New York, or in
London, or in such other place as the Company or such Holders shall reasonably
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 Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum. Notwithstanding the
foregoing, no meeting of Holders with respect to Securities of any series
which is represented in whole or in part by a Book-Entry Security shall be
adjourned to a date more than 90 days after the date on which notice of such
meeting was originally given in accordance with Section 1402 unless the
Trustee shall send out a new notice of meeting.
<PAGE> 74
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage that is
less than a majority in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the
meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified in
Section 105 and the appointment of any proxy shall be proved in the manner
specified in Section 105. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
<PAGE> 75
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section 1402
and, if applicable, Section 1404. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * *
<PAGE> 76
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LOUIS DREYFUS NATURAL GAS CORP.
(CORPORATE SEAL) By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
----------------------------------------------
(CORPORATE SEAL) By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
<PAGE> 77
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
On the day of , , before me personally came,
------- ---------- ----
to me known, who, being by me duly sworn, did depose and say
- --------------
that he is of LOUIS DREYFUS NATURAL GAS CORP., one of the
-----------------
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------------------
Notary Public in Oklahoma County for the
State of Oklahoma
My Commission Expires
------------------------
(NOTARIAL SEAL)
STATE OF )
--------------
) ss.
COUNTY OF )
---------------
On the day of , , before me personally came,
---------- ------------ ----
to me known, who, being by me duly sworn, did depose and say
- --------------
that he is of , the corporations described in and
-------------- -------------
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------------------------
Notary Public in County for the
------------
State of
-------------------
My Commission Expires
------------------------
(NOTARIAL SEAL)
<PAGE> 1
EXHIBIT 4.9
LOUIS DREYFUS NATURAL GAS CORP.,
AS ISSUER
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
INDENTURE
DATED AS OF ,
----------------- ----
JUNIOR SUBORDINATED DEBT SECURITIES
<PAGE> 2
LOUIS DREYFUS NATURAL GAS CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ,
-------- -----
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ----------- ----------
Section 310 (a)(1). . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . 103
(c)(2). . . . . . . . . . . . . . . . . 103
(c)(3). . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . 602, 703(a)
(c) . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . 601(c)
(d)(1). . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2). . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3). . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(l)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(a)(2). . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1). . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . 108
- -----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . 10
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . 10
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Additional Amounts . . . . . . . . . . . . . . . . . . . 11
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 11
Authenticating Agent. . . . . . . . . . . . . . . . . . . 11
Authorized Newspaper. . . . . . . . . . . . . . . . . . . 11
Board of Directors. . . . . . . . . . . . . . . . . . . . 11
Board Resolution. . . . . . . . . . . . . . . . . . . . . 11
Book-Entry Security . . . . . . . . . . . . . . . . . . . 11
Business Day. . . . . . . . . . . . . . . . . . . . . . . 11
Commission. . . . . . . . . . . . . . . . . . . . . . . . 11
Common Depositary . . . . . . . . . . . . . . . . . . . . 12
Company . . . . . . . . . . . . . . . . . . . . . . . . . 12
Company Request . . . . . . . . . . . . . . . . . . . . . 12
Corporate Trust Office. . . . . . . . . . . . . . . . . . 12
Defaulted Interest. . . . . . . . . . . . . . . . . . . . 12
Depository. . . . . . . . . . . . . . . . . . . . . . . . 12
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . 12
Event of Default. . . . . . . . . . . . . . . . . . . . . 12
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 12
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest. . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest Payment Date . . . . . . . . . . . . . . . . . . 13
Judgment Currency . . . . . . . . . . . . . . . . . . . . 13
Junior Subordinated Payment . . . . . . . . . . . . . . . 13
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 13
Obligation. . . . . . . . . . . . . . . . . . . . . . . . 13
Officers' Certificate . . . . . . . . . . . . . . . . . . 14
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . 14
Original Issue Discount Security. . . . . . . . . . . . . 14
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 14
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . 15
Payment Event of Default. . . . . . . . . . . . . . . . . 15
Permitted Junior Securities . . . . . . . . . . . . . . . 15
Person. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Place of Payment. . . . . . . . . . . . . . . . . . . . . 15
Predecessor Security. . . . . . . . . . . . . . . . . . . 15
Proceeding. . . . . . . . . . . . . . . . . . . . . . . . 15
Redemption Date . . . . . . . . . . . . . . . . . . . . . 16
Redemption Price. . . . . . . . . . . . . . . . . . . . . 16
Refinance . . . . . . . . . . . . . . . . . . . . . . . . 16
Regular Record Date . . . . . . . . . . . . . . . . . . . 16
Required Currency . . . . . . . . . . . . . . . . . . . . 16
<PAGE> 4
Responsible Officer . . . . . . . . . . . . . . . . . . . 16
Securities. . . . . . . . . . . . . . . . . . . . . . . . 16
Securities Payment. . . . . . . . . . . . . . . . . . . . 16
Security Register" and "Security Registrar. . . . . . . . 16
Senior Indebtedness . . . . . . . . . . . . . . . . . . . 17
Special Record Date . . . . . . . . . . . . . . . . . . . 17
Stated Maturity . . . . . . . . . . . . . . . . . . . . . 17
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . 17
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Trust Indenture Act . . . . . . . . . . . . . . . . . . . 18
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States . . . . . . . . . . . . . . . . . . . . . . 18
United States Alien . . . . . . . . . . . . . . . . . . . 18
U.S. Government Obligations . . . . . . . . . . . . . . . 18
Vice President. . . . . . . . . . . . . . . . . . . . . . 18
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . 18
Yield to Maturity . . . . . . . . . . . . . . . . . . . . 18
SECTION 102. Incorporation by Reference of Trust Indenture Act. . . 18
Bankruptcy Act. . . . . . . . . . . . . . . . . . . . . . 18
Indenture securities. . . . . . . . . . . . . . . . . . . 18
Indenture security holder . . . . . . . . . . . . . . . . 19
Indenture to be qualified . . . . . . . . . . . . . . . . 19
Indenture trustee" or "institutional trustee. . . . . . . 19
Obligor . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . 19
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . 19
SECTION 105. Acts of Holders. . . . . . . . . . . . . . . . . . . . 20
SECTION 106. Notices, Etc., to Trustee and Company. . . . . . . . . 21
SECTION 107. Notice to Holders; Waiver. . . . . . . . . . . . . . . 22
SECTION 108. Conflict With Trust Indenture Act. . . . . . . . . . . 22
SECTION 109. Effect of Headings and Table of Contents . . . . . . . 22
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . 22
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . . . 22
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . . 23
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . . 23
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . 23
SECTION 115. Corporate Obligation . . . . . . . . . . . . . . . . . 23
<PAGE> 5
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . 23
SECTION 202. Form of Trustee's Certificate of Authentication. . . . 24
SECTION 203. Securities in Global Form. . . . . . . . . . . . . . . 24
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . . 25
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 25
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . 28
SECTION 303. Execution, Authentication, Delivery and Dating . . . . 28
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 30
SECTION 305. Registration, Registration of Transfer and Exchange. . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . 32
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . 33
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . 35
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 37
SECTION 403. Discharge of Liability on Securities of Any Series . . 37
SECTION 404. Reinstatement. . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . 40
<PAGE> 6
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver.. . . . . . . . . . . . . 45
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . 46
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . 46
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . 47
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 48
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities 49
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . 49
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . 50
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . 50
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . 51
SECTION 610. Resignation and Removal; Appointment of Successor. . . 51
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . 53
<PAGE> 7
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 613. Preferential Collection of Claims Against Company. . . 54
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . 54
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . 56
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 702. Preservation of Information; Communications to Holders 56
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 57
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE. . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . 57
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . 58
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 58
SECTION 901. Supplemental Indentures Without Consent of Holders . . 58
SECTION 902. Supplemental Indentures With Consent of Holders. . . . 59
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . 60
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . 61
SECTION 905. Conformity With Trust Indenture Act. . . . . . . . . . 61
SECTION 906. Reference in Securities to Supplemental Indentures . . 61
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . 61
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . 61
SECTION 1003. Money for Securities Payments to be Held in Trust . . 62
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . 63
<PAGE> 8
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . 63
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . 63
SECTION 1007. Statement by Officers as to Default . . . . . . . . . 64
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . 64
SECTION 1009. Additional Amounts. . . . . . . . . . . . . . . . . . 64
ARTICLE ELEVEN
REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . 65
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . 65
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . 65
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . 65
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . 66
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . 66
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . 67
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . 67
ARTICLE TWELVE
SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . 67
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities 68
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . 68
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . 68
SECTION 1301. Securities Subordinate to Senior Indebtedness . . . . 68
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc. . . . 69
SECTION 1303. No Payment When Senior Indebtedness in Default . . . 69
SECTION 1304. Payment Permitted if No Default . . . . . . . . . . . 69
SECTION 1305. Subrogation to Rights of Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . 70
SECTION 1306. Provisions Solely to Define Relative Rights . . . . . 70
SECTION 1307. Trustee to Effectuate Subordination . . . . . . . . . 70
<PAGE> 9
SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . 71
SECTION 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . 71
SECTION 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 72
SECTION 1311. Trustee Not Fiduciary for Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . 72
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. . . . . . . . . . . 73
SECTION 1313. Article Applicable to Paying Agents . . . . . . . . . 73
SECTION 1314. Application by Trustee of Assets Deposited with It. . 73
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . . . 73
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . 73
SECTION 1402. Call, Notice and Place of Meetings. . . . . . . . . . 73
SECTION 1403. Persons Entitled to Vote at Meetings. . . . . . . . . 74
SECTION 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . 74
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . 75
SECTION 1406. Counting Votes and Recording Action of Meetings . . . 76
- -----------------------
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 10
THIS INDENTURE, dated as of , between LOUIS DREYFUS
----------- ----
NATURAL GAS CORP., a corporation duly organized and existing under the laws of
the State of Oklahoma (herein called the "Company"), having its principal
office at 14000 Quail Springs Parkway, Suite 600, Oklahoma City, Oklahoma
73134, and WILMINGTON TRUST COMPANY, a banking corporation duly organized and
existing under the laws of Delaware, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, 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 junior subordinated indebtedness
(herein called the "Securities"), to be issued in one or more series as in
this Indenture provided; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at
the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in Section
102.
<PAGE> 11
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"Additional Amounts" means any additional amounts that are required by a
Security or by or pursuant to a Board Resolution, under circumstances
specified therein or pursuant thereto, to be paid by the Company with respect
to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and
of general circulation in the place in connection with which the term is used
or in the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" 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.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
<PAGE> 12
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" means the Person designated to hold a global Security
pursuant to Section 301.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President, its Chief Executive
Officer, its Chief Operating Officer, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"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 as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indebtedness", as applied to any Person, means without duplication, with
respect to any Person, the principal component of (a) all obligations of such
Person (i) in respect of borrowed money, whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof, (ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) for the payment of money representing the balance deferred and unpaid of
the purchase price of any property or services (other than accounts payable or
other obligations arising in the ordinary course of business), (iv) evidenced
by bankers acceptances or similar instruments issued or accepted by banks, (v)
for the payment of money relating to a capitalized lease obligations, or (vi)
evidenced by letter of credit or reimbursement obligation of such Person with
respect to any letter of credit (other than a letter of credit entered into
<PAGE> 13
for the purpose of providing security in connection with the forward purchase
and sale contracts or energy swaps with respect to the Company's oil and gas
business); (b) all net current obligations of such Person under interest rate
swap obligations and foreign currency hedges; (c) all liabilities of others of
the kind described in the preceding clauses (a) or (b) that such person has
guaranteed or that are otherwise its legal liability; (d) Indebtedness (as
otherwise defined in this definition) of others secured by a lien on any asset
of such Person (other than liens securing obligations of such person under
delivery contracts with respect to the Company's oil and gas business),
whether or not such Indebtedness is assumed by such Person (provided that if
the obligations so secured have not been assumed in full by such Person or are
not otherwise such Person's legal liability in full, then such obligation
shall be deemed to have been an amount equal to the greater of (A) the lesser
of (1) the full amount of such obligations and (2) the fair market value of
such asset, as determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a board resolution, and (B)
the amount of obligations as have been assumed by such Person or which are
otherwise such Person's legal liability), (e) such other items as are defined
in the terms of the particular series of Securities established pursuant to
Section 301 hereof; and (f) any and all deferrals, renewals, and extensions,
refinancings and refunding (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a) through (e) or this clause (f), whether or not
between or among the same parties.
"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.
"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.
"Judgment Currency" has the meaning specified in Section 506.
"Junior Subordinated Payment" means any payment or distribution which may
be payable or deliverable in respect of the Securities by reason of the
payment of any Indebtedness of the Company that is subordinate in right of
payment to the payment of the Securities.
"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.
"Obligation" of any Person means any obligation of such Person to pay
principal of or premium, if any, or interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
<PAGE> 14
relating to the Company, whether or not a claim for such post-petition
interest is allowed in such proceeding) on any Indebtedness or any penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts in
respect thereof.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer or a Vice
President, and by the Treasurer or Assistant Treasurer, the Controller,
Assistant Controller, the Secretary or Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided, however, 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
(c) 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
<PAGE> 15
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), of such Security and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company, authorized
by the Company to pay the principal of (and premium, if any) or interest on
any one or more series of Securities on behalf of the Company.
"Payment Event of Default" means any default in the payment of principal
of or premium, if any, or interest on or fees with respect to any Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Permitted Junior Securities" means subordinated debt securities of the
Company (or any successor obligor with respect to the Senior Indebtedness)
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security, shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" means (subject to the last paragraph of Section 1302) (i) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its assets, (ii)
any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
<PAGE> 16
marshaling of assets and liabilities of the Company.
"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.
"Refinance" means, with respect to any specified Indebtedness, to incur
additional Indebtedness and use the proceeds thereof to redeem, repurchase,
retire for value, refinance or refund such specified Indebtedness (and the
term "Refinancing" and "Refinanced" shall have meanings correlative to the
foregoing.)
"Regular Record Date" for the interest payable on any Interest Payment
Date on any series means the date specified for that purpose as contemplated
by Section 301, or, if not so specified, the last day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
fifteenth day of the calendar month or the fifteenth day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be a Business
Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers, in each case with direct responsibility for
administration of this Indenture, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Payment" means any payment or distribution of any kind or
character, whether by way of set-off or otherwise and whether in cash,
property or securities (including any Junior Subordinated Payment) on account
of principal of or premium, if any, or interest on, or Additional Amounts with
respect to, the Securities or on account of any purchase, repurchase,
redemption or other acquisition of Securities, in any case whether by the
Company or by any other person on behalf of the Company.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
<PAGE> 17
"Senior Indebtedness" means (i) all Indebtedness of the Company, including
principal, premium, if any, interest and all other amounts owing in respect of
such Indebtedness (including interest that, but for the filing of a petition
initiating any proceeding pursuant to any bankruptcy law with respect to the
Company, would accrue on such Indebtedness at the contractual rate provided in
the instruments evidencing the respective obligations, whether or not such
claim is allowed in such bankruptcy proceeding), whether existing on the date
of issuance of any Securities or thereafter created, incurred or assumed
unless the terms of such Indebtedness or the terms of the instrument creating
or evidencing it expressly provide that such Indebtedness shall not be senior
in right of payment to the Securities; (ii) all reimbursement obligations of
the Company with respect to letters of credit not otherwise constituting
Indebtedness; (iii) all obligations of the Company pursuant to forward
purchase and sale contracts or energy swaps with respect to the Company's oil
and gas business, including obligations to deliver natural gas or other
commodities and liabilities for any breach of obligations under such
contracts; (iv) all charges, fees, expenses (including reasonable attorneys
fees and expenses) and other amounts incurred by or owing to holders of
Indebtedness or obligations described in the preceding clauses (i), (ii) and
(iii) in connection with such Indebtedness or obligations; (v) all interest
payable during the pendency of a proceeding under Title XI of the United
States Code on Indebtedness or obligations referred to in clauses (i), (ii)
and (iii) incurred prior to the commencement of such proceeding; and (vi) such
other indebtedness or obligations of the Company as defined in the terms for
the particular series of Securities established pursuant to Section 301
hereof. Notwithstanding the foregoing, Senior Indebtedness shall not include
(i) any Indebtedness of the Company to a Subsidiary of the Company, (ii)
Indebtedness of the Company to, or guaranteed on behalf of any Affiliate,
including without limitation amounts owed for compensation, and (iii) such
other Indebtedness or obligations as defined in the terms for the particular
series of Securities established pursuant to Section 301 hereof.
"Special Record Date" for the payment of any Defaulted Interest on the
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 representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust" shall mean each of Louis Dreyfus Natural Gas Trust I and Louis
Dreyfus Natural Gas Trust II, as applicable, each a Delaware business trust or
any other similar trust created for the purpose of issuing preferred
<PAGE> 18
securities in connection with the issuance of Securities under this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in
Sections 905 and 1007.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America (including the States
and the District of Columbia) and its "possessions", which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust,
or a foreign partnership.
"U.S. Government Obligations" has the meaning specified in Section 401.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding voting
stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States
Code.
"Indenture securities" means the Securities.
<PAGE> 19
"Indenture security holder" means a Holder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by Commission rule under the Trust Indenture Act
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
<PAGE> 20
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS.
(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. 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 the holding of any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
The Company may set a record date for purposes of determining the identity
of Holders of Securities entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which record date shall
be the later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee prior to such
solicitation. If a record date is fixed, those persons who were Holders of
Securities at such record date (or their duly designated proxies), and only
those persons, shall be entitled with respect to such Securities to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such
<PAGE> 21
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 at the time the taking of such action by the Holders
of such requisite principal amount is evidenced to the Trustee for such
Securities.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of very 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 consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent, waiver or other Act as to
such Holder's Security or portion thereof. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the Act
becomes effective.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
<PAGE> 22
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of Securities of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders of Securities if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
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
Securities by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders of 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 Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision hereof which is required to be
included in this Indenture by any of the provisions of the Trust Indenture
Act, such provision of the Trust Indenture Act shall control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only
and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
<PAGE> 23
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders and holders of any Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
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 payment of principal and interest (and premium and Additional
Amounts, if any,) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
SECTION 115. CORPORATE OBLIGATION.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, shareholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor
of the Company or the Trustee with respect to the Company's obligations on
the Securities or the obligations of the Company or the Trustee under this
Indenture or any certificate or other writing delivered in connection
herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
All Securities shall be in registered form and each series shall be in
substantially such form or forms (including temporary or permanent global
form) as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
<PAGE> 24
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued in global form as permitted by Section
304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the form or forms of
Securities 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).
The definitive Securities, shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
---------------------------------------------
as Trustee
By:
------------------------------------------
Authorized Signatory."
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as contemplated by
Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
<PAGE> 25
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
7Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or of the Trustee shall treat a Person as the Holder of such principal amount
of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global
Security.
Global Securities may be issued in registered form and in either temporary
or permanent form. Permanent Global Securities will be issued in definitive
form.
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 or pursuant to 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."
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
<PAGE> 26
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);
(3) 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 and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and the Common Depositary for any global Security or
Securities;
(4) the date or dates on which the principal (and premium, if any)
of the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether
and under what circumstances Additional Amounts with respect to such
Securities shall be payable, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and, if other than as set forth in Section 101, the Regular Record
Date for the interest payable on any Securities on any Interest Payment
Date;
(6) the right, if any, to extend or defer the interest payment
periods and the duration of such extension;
7) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on, and
any Additional Amounts with respect to, the Securities of the series shall
be payable;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and
conditions upon which, Securities of the series shall be redeemed or
purchased in whole or in part pursuant to such obligation;
<PAGE> 27
(10) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $25 and any integral multiple
thereof;
(11) the currency or currencies (including composite currencies) in
which payment of the principal of (and premium, if any) and interest on,
and any Additional Amounts with respect to, the Securities of the series
shall be payable if other than the currency of the United States of
America;
(12) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies (including composite
currencies) other than that in which the Securities are stated to be
payable, the currency or currencies (including composite currencies)in
which payment of the principal of (and premium, if any) and interest on,
and any Additional Amounts with respect to, Securities of such series as
to which such election is made shall be payable, and the periods within
which and the terms and conditions upon which such election is to be
made;
(13) if the amount of payments of principal of (and premium, if any)
or interest on, and any Additional Amounts with respect to, the Securities
of the series may be determined with reference to an index, the manner in
which such amounts shall be determined;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(15) 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) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or 403
and the application, if any, of Section 403;
(17) any deletions or modifications of or additions to the Events of
Default set forth in Section 501 or covenants of the Company set forth in
Article Ten pertaining to the Securities of the series;
(18) any modifications to the definitions of Indebtedness or Senior
Indebtedness or modifications to the terms of the subordination provisions
in Article Thirteen pertaining to the Securities of the series; and
<PAGE> 28
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action together
with such Board Resolution shall be certified by 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.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of
such series denominated in Dollars shall be issuable in denominations of $25
and any integral multiple thereof. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Securities, any Securities of a
series denominated in a currency other than Dollars shall be issuable in
denominations that are the equivalent, as determined by the Company by
reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is reported or otherwise made available by the
Federal Reserve Bank of New York, on the applicable issue date for such
Securities, of $25 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, its Chief
Executive Officer, its Chief Operating Officer, its Chief Financial Officer,
its Treasurer or one of its Vice Presidents, under its corporate seal
reproduced thereon or affixed thereto attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
<PAGE> 29
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 201
and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
<PAGE> 30
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept for each series of Securities at one of
the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities of such series. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. Bearer Securities may not be issued in
<PAGE> 31
exchange for Securities.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interest for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that series in an
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 103 or be accompanied an Opinion of Counsel) by
the Common Depositary or such other depositary or Common Depositary as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate, and deliver, in exchange for each portion of such permanent
global Security, a like aggregate principal amount of other definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged; 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. 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 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 (a) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) 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 Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
<PAGE> 32
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchange pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (b)
to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding the foregoing and except as otherwise specified pursuant
to 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 (a) 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, (b) 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 (c) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be 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
clauses (a), (b) or (c) 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.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
<PAGE> 33
their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(l) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
<PAGE> 34
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such 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
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, 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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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
<PAGE> 35
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 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 Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Permanent global Securities shall not be disposed of until exchanged in
full for definitive Securities or until payment thereon is made in full.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered other than (i) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for
<PAGE> 36
cancellation, the Company has deposited or caused to be deposited
with the Trustee as trust funds, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee,
for the purpose money or U.S. Government Obligations maturing as
to principal and interest in such amounts and at such times as
will, together with the income to accrue thereon, without
consideration of any reinvestment thereof, be sufficient to pay
and discharge the entire indebtedness on all Outstanding Securities
of such series not theretofore delivered to the Trustee for
cancellation for principal (and premium and Additional Amounts, if
any) and interest to the Stated Maturity or any Redemption Date
contemplated by the penultimate paragraph of this Section, as the
case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sum
payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities
of such series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Outstanding Securities of such
series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations" means
direct non-callable obligations of, or non-callable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory sinking fund requirement, the trust
agreement shall provide therefor and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
<PAGE> 37
except for a discharge pursuant to subclause (A) of clause (l) of this
Section, the obligations of the Company under Sections 305, 306, 404, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money
has been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities
of such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium, if any) and
interest on Securities of such series, shall cease, terminate and be
completely discharged and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401
of this Indenture (other than any additional conditions specified pursuant
to Sections 301 and 401(3)) with respect to all Outstanding Securities of
such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, however, that, the Company shall not be
discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
<PAGE> 38
Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal or interest of (or premium, if any),
and any Additional Amounts with respect to, on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such
series:
(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series when such interest or Additional
Amounts become due and payable, and continuance of such default for a
period of 60 days, whether or not such payment is prohibited by Article
Thirteen; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, whether or not such
payment is prohibited by Article Thirteen; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuance of such
default for a period of 60 days, whether or not such payment is prohibited
by Article Thirteen; or
(4) default in the performance or breach of any covenant or
<PAGE> 39
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 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 all
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) the Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of securities to holders of trust
securities in liquidation of their interests in such Trust, (ii) the
redemption of all of the outstanding trust securities of such Trust or
(iii) certain mergers, consolidations or amalgamations, each as permitted
by the amended declaration of such Trust; or
(8) any other Event of Default provided with respect to Securities
<PAGE> 40
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment
thereof due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in
an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Trustee by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"),
as such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made
under such circumstances in Dollars where the required payment is in a
currency other than Dollars will not constitute an Event of Default under this
Indenture.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of (a) the series affected by such default (in the case of an Event
of Default described in clause (l), (2), (3) or (8) of Section 501) or (b) all
series of Securities (in the case of other Events of Default) may declare the
principal amount (or, if any such Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of the series affected by such
default or all series, as the case may be, to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities
<PAGE> 41
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the non-payment
of the principal of Securities of that series (or of all series, as the
case may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or Additional Amounts shall have become due and payable
and such default continues for a period of 60 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest and Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity), and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
<PAGE> 42
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser
amount in the case of Original Issue Discount Securities) of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceedings.
<PAGE> 43
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claim under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Thirteen, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any), interest or any Additional Amounts, upon
presentation of the Securities, or both as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To holders of Senior Indebtedness to the extent required
by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), and interest and any Additional
Amounts on, the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any), interest and Additional Amounts,
respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose of
obtaining judgment against the Company in any court it is necessary to convert
the sum due in respect of the principal of (or premium, if any) or interest on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
<PAGE> 44
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 shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Subject to Article Thirteen and notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
<PAGE> 45
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect to
all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
<PAGE> 46
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series
relating to or arising under an Event of Default described in clause (3) or
(7) of Section 501 and its consequences, and the Holders of a majority in
principal amount of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts with respect
to, any Security on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
<PAGE> 47
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(l) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
<PAGE> 48
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest on, or any Additional Amount with, any Security
of such series or in the payment of any sinking fund installment with respect
to Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided, further, that in
the case of any default of the character specified in Section 501(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
<PAGE> 49
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
<PAGE> 50
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if
any, on, or Additional Amounts with respect to, particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Act.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series,
as their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
<PAGE> 51
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series the Indenture of the Company dated as of June 15, 1994, if applicable,
this Indenture with respect to the Securities of any series other than that
series, and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
<PAGE> 52
(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 of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and such
successor Trustee or Trustees shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
<PAGE> 53
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
<PAGE> 54
(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.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia;
and shall be authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 or equivalent
amount expressed in a foreign currency and subject to supervision or
examination by federal or state authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
<PAGE> 55
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
---------------------------------------------
As Trustee
By:
-----------------------------------------
As Authenticating Agent
<PAGE> 56
By:
-----------------------------------------
Authorized Signatory"
Notwithstanding any provision of this Section 614 to the contrary, if at
any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to
that series, on January 1 and July 1), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of that series
as of such dates, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content, such list to be dated as of a date not more than 15 days
prior to the time such list is furnished; excluding from any such list names
and addresses received by the Trustee in its capacity as Security Registrar,
if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders of each series received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b) of
the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
<PAGE> 57
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year, commencing with the first
May 15 following the issuance of the first series of Securities hereunder, the
Trustee shall transmit by mail to Holders a brief report dated as of such May
15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust Indenture
Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(l) to all Holders of Securities, as the names and addresses of
such Holders appear in the Security Register; and
(2) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
<PAGE> 58
(l) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States of America, 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 premium, if any) and interest (including all Additional
Amounts, if any) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the
case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(l) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
<PAGE> 59
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) 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
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such other
provisions as may be made shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
<PAGE> 60
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
(except as contemplated by Section 801(1) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
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 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
<PAGE> 61
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
<PAGE> 62
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, the Company will, on or before each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
<PAGE> 63
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent that Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments
<PAGE> 64
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers
thereof and whether or not to the best of their knowledge the Company is in
default in the fulfillment of any of its obligations under this Indenture, and
if the Company shall be in default, specifying each such default know to them
and the nature and status thereof.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1009. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series
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 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.
<PAGE> 65
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 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 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 and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
<PAGE> 66
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series or of
he principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 107
to 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,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
A notice of redemption as contemplated by Section 107 need not identify
particular Securities to be redeemed. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
<PAGE> 67
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be
redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, maturing after
the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest (and any Additional Amounts)
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and Stated
Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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
<PAGE> 68
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a series (other than
any previously called for redemption), and (b) 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, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, whether upon original issue or upon transfer or
assignment, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth, the payment of the principal of (and premium, if
any) and interest on, and any Additional Amounts with respect to, each and all
of the Securities and the payment of any coupon is hereby expressly made
<PAGE> 69
subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
The payment of the principal of and premium, if any, and interest on the
Securities is, to the extent set forth herein and in any applicable terms of
the Securities established pursuant to Section 301 hereof, subordinated in
right of payment to the prior payment in full of all Senior Indebtedness,
whether now outstanding or incurred in the future. Upon any payment or
distribution of assets of the Company to creditors in connection with a
proceeding, the holders of all Senior Indebtedness will first be entitled to
receive any payment in full of all amounts due or to become due thereon in
cash, or such payment duly provided for, before any Securities Payment.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a Proceeding for the purposes of
this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
If a Payment Event of Default shall have occurred and be continuing, no
Securities Payment (other than in Permitted Junior Securities) shall be made.
In the event that, notwithstanding the restriction described in the preceding
sentence, payment is made to the Trustee or a Holder of Securities prohibited
by any such restriction, then such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (prorated to such holders on the basis of the respective amount
of Senior Indebtedness held by such holders) or their representatives, if any,
as their respective interests may appear.
The provisions of this Section shall not apply to any payment with respect
to which Section 1302 would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1302 or under the conditions
described in Section 1303, from making Securities Payments, or (b) the
application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the
Holders, if, at the time of such application by the Trustee, it did not have
actual knowledge that such Securities Payment would have been prohibited by
the provisions of this Article.
<PAGE> 70
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all amounts due and to become due on or
in respect of Senior Indebtedness, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on, and any Additional Amounts
with respect to, the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations
of the Company), to pay to the Holders of the Securities the principal of and
premium, if any, and interest on, and any Additional Amounts with respect to,
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the occurrence of an Event of Default
or prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof, whether upon original
issue or upon transfer or assignment, authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
effectuate, as between the Holders of the Securities and the holders of Senior
Indebtedness, the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
<PAGE> 71
event of any dissolution, winding up or liquidation or reorganization under
any applicable bankruptcy law of the Company (whether in bankruptcy,
insolvency or receivership proceedings or otherwise), the timely filing of a
claim for the unpaid balance of such Holder's Securities in the form required
in such proceedings and the causing of such claim to be approved. If the
Trustee does not file a claim or proof of debt in the form required in such
proceedings prior to 10 days before the expiration of the time to file such
claims of proofs, then the holders of Senior Indebtedness, jointly, or their
representative shall have the right to file an appropriate claim for and on
behalf of the Holders. Nothing contained herein shall be construed to
authorize the Trustee or the holders of Senior Indebtedness to authorize or
consent to or to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder or to authorize the Trustee or the
holders of Senior Indebtedness to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with. Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement
in any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for
the collection of Senior Indebtedness and settle or compromise Senior
Indebtedness (which, to the extent so settled and compromised, shall be deemed
to have been paid in full for all purposes hereof); (d) apply any amounts
received to any liability of the Company owing to holders of Senior
Indebtedness; and (e) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1309. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any default
or event of default with respect to any Senior Indebtedness or of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
<PAGE> 72
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Indebtedness or from any trustee therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section at least five Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of and premium, if any, or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to
the contrary which may be received by it within five Business Days prior to
such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which any Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 1311. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness.
<PAGE> 73
SECTION 1312. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1313. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1312 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1314. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 401 shall be for the sole
benefit of the Holders and shall not be subject to this Article. Otherwise,
any deposit of assets by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any Securities
shall be subject to the provisions of this Article.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1401, to be held at such
time and at such place in the city in which the Corporate Trust Office is
located, in the Borough of Manhattan, the City of New York, or in London, or
in such other location as the Trustee shall reasonably determine. Notice of
every meeting of Holders of Securities of any series, setting forth the time
<PAGE> 74
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 107,
not less than 20 nor more than 180 days prior to the date fixed for the
meeting (or, in the case of a meeting of Holders with respect to Securities of
a series all or part of which are represented by a Book-Entry Security, not
less than 20 nor more than 40 days).
(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
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the city in which the Corporate Trust
Office is located, in the Borough of Manhattan, the City of New York, or in
London, or in such other place as the Company or such Holders shall reasonably
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 Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
<PAGE> 75
Securities of such series shall constitute a quorum. Notwithstanding the
foregoing, no meeting of Holders with respect to Securities of any series
which is represented in whole or in part by a Book-Entry Security shall be
adjourned to a date more than 90 days after the date on which notice of such
meeting was originally given in accordance with Section 1402 unless the
Trustee shall send out a new notice of meeting.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage that is
less than a majority in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the
meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner specified in
Section 105 and the appointment of any proxy shall be proved in the manner
specified in Section 105. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or as a proxy.
<PAGE> 76
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section 1402
and, if applicable, Section 1404. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * *
<PAGE>
<PAGE> 77
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LOUIS DREYFUS NATURAL GAS CORP.
(CORPORATE SEAL) By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
WILMINGTON TRUST COMPANY
(CORPORATE SEAL) By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
<PAGE>
<PAGE> 78
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
On the day of , , before me personally came,
------------- ------------ -----
to me known, who, being by me duly sworn, did depose and say
- -------------
that he is of LOUIS DREYFUS NATURAL GAS CORP., one of the
-------------
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------------------
Notary Public in Oklahoma County for the
State of Oklahoma
My Commission Expires
------------------------
(NOTARIAL SEAL)
STATE OF )
-------------
) ss.
COUNTY OF )
------------
On the day of , , before me personally came,
------------- ------------ -----
to me known, who, being by me duly sworn, did depose and say
- -------------
that he is of , the corporations described in
------------- ------------------
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------------------------
Notary Public in County for the
-------------
State of
----------------
My Commission Expires
------------------------
(NOTARIAL SEAL)
<PAGE> 1
EXHIBIT 4.14
CERTIFICATE OF TRUST OF LOUIS DREYFUS NATURAL GAS TRUST I
THIS Certificate of Trust of Louis Dreyfus Natural Gas Trust I (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Jeffrey A. Bonney, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Louis Dreyfus
Natural Gas Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By: /s/ James P. Lawler
-----------------------------------
Name: James P. Lawler
Title: Vice President
/s/ Jeffrey A. Bonney
--------------------------------------
Name: Jeffrey A. Bonney
<PAGE> 1
EXHIBIT 4.15
CERTIFICATE OF TRUST OF LOUIS DREYFUS NATURAL GAS TRUST II
THIS Certificate of Trust of Louis Dreyfus Natural Gas Trust II (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Jeffrey A. Bonney, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Louis Dreyfus
Natural Gas Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By: /s/ James P. Lawler
-----------------------------------
Name: James P. Lawler
Title: Vice President
/s/ Jeffrey A. Bonney
--------------------------------------
Name: Jeffrey A. Bonney
<PAGE> 1
EXHIBIT 4.16
DECLARATION OF TRUST
This Declaration of Trust, dated as of May 20, 1999 (this "Declaration"),
among (i) Louis Dreyfus Natural Gas Corp., an Oklahoma corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation,
as trustee, and (iii) Jeffrey A. Bonney, an individual, as trustee (each of
such trustees in (ii) and (iii) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Louis
Dreyfus Natural Gas Trust I" in which name the Trustees, or the Depositor to
the extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 DEL. C. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust in the form of Exhibit A attached hereto with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize the Depositor, as the
sponsor of the Trust, (i) to file with the Securities and Exchange Commission
(the "Commission") and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the Securities Act
of 1933, as amended, of the Preferred Securities of the Trust and possibly
certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
<PAGE> 2
Preferred Securities of the Trust under the Securities Exchange Act of 1934,
as amended; (ii) to file with the New York Stock Exchange or any other
national stock exchange or The Nasdaq National Market (each, an "Exchange")
and execute on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on any of the Exchanges; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iv) to negotiate the
terms of and execute on behalf of the Trust an underwriting agreement among
the Trust, the Depositor and any underwriter(s), dealer(s) or agent(s)
relating to the Preferred Securities, as the Depositor, on behalf of the
Trust, may deem necessary or desirable; and (v) to execute and deliver on
behalf of the Trust letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky
laws, to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or his capacity as a Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that Wilmington Trust Company in its capacity as a Trustee of
the Trust shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and
Jeffrey A. Bonney, as a Trustee and not in his individual capacity, hereby
constitutes and appoints Mark E. Monroe and Kevin R. White, and each of them,
as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, the Exchange and
administrators of state securities or blue sky laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by
a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
<PAGE> 3
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at
any time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Declaration shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
LOUIS DREYFUS NATURAL GAS CORP.,
as Depositor
By: /s/ Jeffrey A. Bonney
------------------------------------
Name: Jeffrey A. Bonney
Title: Executive Vice President and Chief
Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ James P. Lawler
------------------------------------
Name: James P. Lawler
Title: Vice President
/s/ Jeffrey A. Bonney
---------------------------------------
Jeffrey A. Bonney, as Trustee
<PAGE> 4
EXHIBIT A
CERTIFICATE OF TRUST OF LOUIS DREYFUS NATURAL GAS TRUST I
THIS Certificate of Trust of Louis Dreyfus Natural Gas Trust I (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Jeffrey A. Bonney, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Louis Dreyfus
Natural Gas Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By:
------------------------------------
Name: James P. Lawler
Title: Vice President
---------------------------------------
Name: Jeffrey A. Bonney
<PAGE> 1
EXHIBIT 4.17
DECLARATION OF TRUST
This Declaration of Trust, dated as of May 20, 1999 (this "Declaration"),
among (i) Louis Dreyfus Natural Gas Corp., an Oklahoma corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation,
as trustee, and (iii) Jeffrey A. Bonney, an individual, as trustee (each of
such trustees in (ii) and (iii) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Louis
Dreyfus Natural Gas Trust II" in which name the Trustees, or the Depositor to
the extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that
the Trust created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 DEL. C. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust in the form of Exhibit A attached hereto with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize the Depositor, as
the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf of the
Trust, (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and possibly certain other securities and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934,
as amended; (ii) to file with the New York Stock Exchange or any other
national stock exchange or The Nasdaq National Market (each, an "Exchange")
and execute on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Preferred Securities to be
listed on any of the Exchanges; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
<PAGE> 2
the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iv) to negotiate the
terms of and execute on behalf of the Trust an underwriting agreement among
the Trust, the Depositor and any underwriter(s), dealer(s) or agent(s)
relating to the Preferred Securities, as the Depositor, on behalf of the
Trust, may deem necessary or desirable; and (v) to execute and deliver on
behalf of the Trust letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities. In the event that any
filing referred to in clauses (i), (ii) and (iii) above is required by the
rules and regulations of the Commission, an Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of the
Trust, is hereby authorized and, to the extent so required, directed to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in its capacity
as a Trustee of the Trust shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchange or state securities or blue
sky laws. In connection with the filings referred to above, the Depositor and
Jeffrey A. Bonney, as a Trustee and not in his individual capacity, hereby
constitutes and appoints Mark E. Monroe and Kevin R. White, and each of them,
as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, the Exchange and
administrators of state securities or blue sky laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by
a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at
any time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Declaration shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
<PAGE> 3
LOUIS DREYFUS NATURAL GAS CORP.,
as Depositor
By: /s/ Jeffrey A. Bonney
-----------------------------
Name: Jeffrey A. Bonney
Title: Executive Vice President
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
Title: Vice President
/s/ Jeffrey A. Bonney
----------------------------------
Jeffrey A. Bonney, as Trustee
<PAGE>
<PAGE> 4
EXHIBIT A
CERTIFICATE OF TRUST OF LOUIS DREYFUS NATURAL GAS TRUST II
THIS Certificate of Trust of Louis Dreyfus Natural Gas Trust II (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Jeffrey A. Bonney, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Louis Dreyfus
Natural Gas Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By:
------------------------------
Name: James P. Lawler
Title: Vice President
----------------------------------
Name: Jeffrey A. Bonney
<PAGE> 1
EXHIBIT 4.18
AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
LOUIS DREYFUS NATURAL GAS CORP., as Depositor,
WILMINGTON TRUST COMPANY, as Property Trustee,
WILMINGTON TRUST COMPANY, as Delaware Trustee,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of [ , ]
------- -- ----
LOUIS DREYFUS NATURAL GAS TRUST [ ]
--
<PAGE> 2
LOUIS DREYFUS NATURAL GAS TRUST [ ]*
--
CERTAIN SECTIONS OF THIS DECLARATION OF TRUST RELATING TO SECTIONS 310
THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939
TRUST INDENTURE DECLARATION OF TRUST
ACT SECTION SECTION
----------- -------
Section 310
(a)(1). . . . . . . . . . . . . . . . . . . . . . 8.7
(a)(2). . . . . . . . . . . . . . . . . . . . . . 8.7
(a)(4). . . . . . . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . . 8.8
Section 311
(a) . . . . . . . . . . . . . . . . . . . . . . . 8.12
(b) . . . . . . . . . . . . . . . . . . . . . . . 8.12
Section 312
(a) . . . . . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . . . . 5.7
Section 313
(a) . . . . . . . . . . . . . . . . . . . . . . . 8.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 8.13(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . . . . . . . 8.13(c)
Section 314
(a) . . . . . . . . . . . . . . . . . . . . . . . 8.14
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . 8.15
(c)(2). . . . . . . . . . . . . . . . . . . . . . 8.15
(c)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 1.1, 8.15
Section 315
(a) . . . . . . . . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 6.8
(c) . . . . . . . . . . . . . . . . . . . . . . . 6.7
Section 317
(a)(1). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 5.9
Section 318
(a) . . . . . . . . . . . . . . . . . . . . . . . 10.10
<PAGE> 3
* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 2 ESTABLISHMENT OF THE TRUST. . . . . . . . . . . . . . . . . .9
Section 2.1. Name. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business. . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 2.3. Organizational Expenses . . . . . . . . . . . . . . .9
Section 2.4. Issuance of the Preferred Securities. . . . . . . . .9
Section 2.5. Subscription and Purchase of Debentures;
Issuance of the Common Securities . . . . . . . . . . . . . .9
Section 2.6. Declaration of Trust. . . . . . . . . . . . . . . . 10
Section 2.7. Authorization to Enter into Certain Transactions. . 10
Section 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . 13
Section 2.9. Title to Trust Property . . . . . . . . . . . . . . 13
ARTICLE 3 PAYMENT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.1. Payment Account . . . . . . . . . . . . . . . . . . 13
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE[; CONVERSION] . . . . . 14
Section 4.1. Distributions . . . . . . . . . . . . . . . . . . . 14
Section 4.2. Redemption. . . . . . . . . . . . . . . . . . . . . 14
[Section 4.3. Conversion]. . . . . . . . . . . . . . . . . . . . 16
Section 4.4. Special Event Exchange or Redemption. . . . . . . . 18
Section 4.5. Subordination of Common Securities. . . . . . . . . 19
Section 4.6. Payment Procedures. . . . . . . . . . . . . . . . . 20
Section 4.7. Tax Returns and Reports . . . . . . . . . . . . . . 20
Section 4.8. Payment of Taxes, Duties, Etc. of the Trust . . . . 20
Section 4.9. Payments under Indenture. . . . . . . . . . . . . . 20
ARTICLE 5 TRUST SECURITIES CERTIFICATES . . . . . . . . . . . . . . . 20
Section 5.1. Initial Ownership . . . . . . . . . . . . . . . . . 20
Section 5.2. The Trust Securities Certificates . . . . . . . . . 21
Section 5.3. Delivery of Trust Securities Certificates . . . . . 21
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities. . . . . . . . . . . . . . . . . . . . 21
Section 5.5. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . . . . . . . . . . 22
Section 5.6. Persons Deemed Securityholders. . . . . . . . . . . 22
Section 5.7. Access to List of Securityholders'
Names and Addresses . . . . . . . . . . . . . . . . . . . . 22
Section 5.8. Maintenance of Office or Agency . . . . . . . . . . 23
Section 5.9. Appointment of Paying Agent . . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor. . . . 23
Section 5.11. Global Securities; Non-global Securities; Common
Securities Certificate. . . . . . . . . . . . . . . . . . . 23
<PAGE> 4
Section 5.12. Notices to Clearing Agency. . . . . . . . . . . . .24
Section 5.13. Definitive Preferred Securities Certificates. . . .25
Section 5.14. Rights of Securityholders . . . . . . . . . . . . .25
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING . . . . . . . . . .25
Section 6.1. Limitations on Voting Rights . . . . . . . . . . . .25
Section 6.2. Notice of Meetings . . . . . . . . . . . . . . . . .27
Section 6.3. Meetings of Preferred Securityholders. . . . . . . .27
Section 6.4. Voting Rights. . . . . . . . . . . . . . . . . . . .27
Section 6.5. Proxies, Etc.. . . . . . . . . . . . . . . . . . . .27
Section 6.6. Securityholder Action by Written Consent . . . . . .28
Section 6.7. Record Date for Voting and Other Purposes. . . . . .28
Section 6.8. Acts of Securityholders. . . . . . . . . . . . . . .28
Section 6.9. Inspection of Records. . . . . . . . . . . . . . . .29
ARTICLE 7 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . .29
Section 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee . . . . . . . . . . . . . .29
Section 7.2. Representations and Warranties of Depositor. . . . .31
ARTICLE 8 THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . .31
Section 8.1. Certain Duties and Responsibilities. . . . . . . . .31
Section 8.2. Notice of Defaults . . . . . . . . . . . . . . . . .33
Section 8.3. Certain Rights of Property Trustee . . . . . . . . .34
Section 8.4. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . . . . . . . . . .36
Section 8.5. May Hold Securities. . . . . . . . . . . . . . . . .36
Section 8.6. Compensation; Indemnity; Fees. . . . . . . . . . . .36
Section 8.7. Property Trustee Required; Eligibility of Trustees .37
Section 8.8. Conflicting Interests. . . . . . . . . . . . . . . .37
Section 8.9. Resignation and Removal; Appointment of Successor. .37
Section 8.10. Acceptance of Appointment by Successor. . . . . . .39
Section 8.11. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . . . . . .39
Section 8.12. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . . . . . .39
Section 8.13. Reports by Property Trustee . . . . . . . . . . . .39
Section 8.14. Reports to the Property Trustee.. . . . . . . . . .40
Section 8.15. Evidence of Compliance with Conditions Precedent. .40
Section 8.16. Number of Trustees. . . . . . . . . . . . . . . . .40
Section 8.17. Delegation of Power . . . . . . . . . . . . . . . .41
Section 8.18. Appointment of Administrative Trustees. . . . . . .41
ARTICLE 9 TERMINATION, LIQUIDATION AND MERGER. . . . . . . . . . . . .41
Section 9.1. Termination upon Expiration Date . . . . . . . . . .41
Section 9.2. Early Termination. . . . . . . . . . . . . . . . . .42
Section 9.3. Termination. . . . . . . . . . . . . . . . . . . . .42
Section 9.4. Liquidation. . . . . . . . . . . . . . . . . . . . .42
Section 9.5 Mergers, Consolidations, Amalgamations, Conversions
or Replacements of the Trust . . . . . . . . . . . . . . . .43
ARTICLE 10 MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . .44
Section 10.1. Limitation of Rights of Securityholders . . . . . .44
<PAGE> 5
Section 10.2. Amendment . . . . . . . . . . . . . . . . . . . . .44
Section 10.3. Separability. . . . . . . . . . . . . . . . . . . .46
Section 10.4. Governing Law . . . . . . . . . . . . . . . . . . .46
Section 10.5. Payments Due on Non-business Day. . . . . . . . . .46
Section 10.6. Successors. . . . . . . . . . . . . . . . . . . . .46
Section 10.7. Headings. . . . . . . . . . . . . . . . . . . . . .46
Section 10.8. Reports, Notices and Demands. . . . . . . . . . . .46
Section 10.9. Agreement Not to Petition . . . . . . . . . . . . .47
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . . . .47
Section 10.11. Acceptance of Terms of Declaration of Trust,
Guarantee and Indenture. . . . . . . . . . . . . . . . . . .47
Section 10.12. Counterparts . . . . . . . . . . . . . . . . . . .48
Section 10.13. Purchases of Trust Securities. . . . . . . . . . .48
<PAGE> 6
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [ , ]
------ -- ----
among (i) Louis Dreyfus Natural Gas Corp., an Oklahoma corporation (including
any successors or assigns, the "Depositor"), (ii) Wilmington Trust Company, a
Delaware banking corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its personal capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) [ ], an individual, and [ ], an
--------------- ------------------
individual, each of whose address is c/o Louis Dreyfus Natural Gas Corp.,
14000 Quail Springs Parkway, Suite 600, Oklahoma City, Oklahoma 73134, (each,
an "Administrative Trustee" and, collectively, the "Administrative Trustees"
and, collectively with the Property Trustee and Delaware Trustee, the
"Trustees") and (v) the several Holders (as hereinafter defined). The
Depositor and the Trustees hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Declaration of Trust, dated as
of [ , ], 1999 (the "Original Declaration of Trust"), and by the
------ --
execution and filing by certain of the Trustees with the Secretary of State of
the State of Delaware of the Certificate of Trust, filed on [ , ],
------ --
1999, attached as Exhibit A, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets
of the Trust (as defined herein) and investing the proceeds thereof in the
Debentures (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the issuance and sale of the Common Securities
(as defined herein) by the Trust to the Depositor, (ii) the issuance and sale
of the Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein) and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party
and for the benefit of the Holders (as defined herein) of the Preferred
Securities, hereby amends and restates the Original Declaration of Trust in
its entirety and agrees as follows:
<PAGE> 7
ARTICLE 1
DEFINED TERMS
SECTION 1.1. DEFINITIONS.
For all purposes of this Declaration of Trust, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Declaration of Trust; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Interest" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Additional Sums" means, with respect to the Trust Securities, the amount
of Additional Amounts (as defined in the Indenture) paid by the Depositor on
the Debentures.
"Administrative Trustee" means each of [ ]
-----------------
and [ ], each solely in his capacity as Administrative
------------------
Trustee of the Trust formed and continued hereunder and not in his individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor in interest in such capacity, or any successor
administrative trustee appointed as herein provided.
"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, provided, however that an Affiliate of the
Depositor shall not be deemed to include the Trust. 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.
<PAGE> 8
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Clearing Agency for such security, to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Declaration of
Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under
any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property
or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of the Depositor
or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate
Trust Office of the Property Trustee or the corporate trust office of the
Debenture Trustee is closed for business.
<PAGE> 9
"Certificate Depositary Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
that has been designated to act as depositary for the Preferred Securities
pursuant to the Certificate Depositary Agreement. The Depository Trust Company
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the first Time of Delivery, or other such similar
term (as defined in the Underwriting Agreement).
"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 Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount with respect to the assets of the Trust
of $[ ] and having the rights provided therefor in this Declaration
------------
of Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, $.01 par value per share, of the
Depositor.
["Conversion Agent" has the meaning specified in Section 4.3.]
["Conversion Date" has the meaning specified in Section 4.3.]
["Conversion Price" has the meaning specified in Section 4.3.]
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration.
"Current Market Price", with respect to Common Stock, means for any day
<PAGE> 10
the last reported sale price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the New York Stock
Exchange Consolidated Transactions Tape, or, if Common Stock is not listed or
admitted to trading on the New York Stock Exchange on such day, on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, if Common Stock is listed on a national securities
exchange, or the Nasdaq National Market, or, if Common Stock is not quoted or
admitted to trading on such quotation system, on the principal quotation
system on which Common Stock may be listed or admitted to trading or quoted,
or, if not listed or admitted to trading or quoted on any national securities
exchange or quotation system, the average of the closing bid and asked prices
of Common Stock in the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a similar generally
accepted reporting service, or, if not so available in such manner, as
furnished by any New York Stock Exchange member firm selected from time to
time by the Board of Directors for that purpose or, if not so available in
such manner, as otherwise determined in good faith by the Board of Directors.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"Debenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation, as trustee under the Indenture.
"Debentures" means $[ ] aggregate principal amount of the
----------
Depositor's [ ]% [convertible] junior subordinated debentures issued
---
pursuant to the Indenture.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Declaration of Trust any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are deemed to be
a part of and govern this Declaration of Trust and any such modification,
amendment or supplement, respectively.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C., Section 3801, et. seq., as it may be amended from
time to time. "Delaware Trustee" means the Person identified as the "Delaware
<PAGE> 11
Trustee" in the preamble to this Declaration of Trust solely in its capacity
as Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Declaration
of Trust.
"Direct Action" has the meaning specified in Section 6.8.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means the occurrence of a Debenture Event of Default,
whatever the reason for such Debenture Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body.
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" has the meaning specified in Section 5.2.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Wilmington Trust Company, a Delaware banking corporation, as
guarantee trustee, contemporaneously with the execution and delivery of this
Declaration of Trust, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of [ , ]
---------- --- ----
between the Depositor and the Debenture Trustee, as amended or supplemented
from time to time.
"Investment Company Event" means the receipt by the Property Trustee, on
behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having a
national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
<PAGE> 12
"investment company" that is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date of
original issuance of the Preferred Securities under this Declaration of Trust.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $[ ] per Trust Security.
--
"Liquidation Date" means each date on which Debentures or cash are to be
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
["Notice of Conversion" means the notice given by a holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Debentures and to convert such Debentures into Common
Stock on behalf of such holder. Such notice is substantially in the form set
forth in Exhibit E.]
"Officers' Certificate" means a certificate signed by: (i) the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
anAssistant Secretary, of the Depositor, and delivered to the Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.15
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Declaration of Trust shall
include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant of condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
<PAGE> 13
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who may be
an employee of any thereof, and who shall be reasonably acceptable to the
Property Trustee. Any Opinion of Counsel delivered with respect to compliance
with a condition or covenant provided for in this Declaration of Trust shall
include:
(a) a statement that each individual signing the Opinion of Counsel
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each individual in rendering the
Opinion of Counsel;
(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below, with
respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the twelve-month period
commencing [ ] in each of the following years:
----------
Year Redemption Price Year Redemption Price
- ---------------- ------------------ ----------------- ------------------
----- -----% ----- -----%
----- ----- ----- -----
----- ----- ----- -----
and therafter 100%
----- ----- -----
In the event of a redemption of Trust Securities upon the occurrence of a
Tax Event, Trust Securities shall be redeemed at the redemption price of
$[ ] per Trust Security and all accumulated and unpaid Distributions,
--------
if any to the date fixed for redemption.
"Original Declaration of Trust" has the meaning specified in the recitals
to this Declaration of Trust.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration of Trust, except:
(a) Trust Securities theretofore cancelled by the Securities
<PAGE> 14
Registrar or delivered to the Securities Registrar for
cancellation [or tendered for conversion];
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Trust Securities; provided that, if such Trust Securities are to
be redeemed, notice of such redemption has been duly given
pursuant to this Declaration of Trust; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Administrative
Trustee or any Affiliate of the Depositor or any Administrative Trustee shall
be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all of
the Outstanding Trust Securities are owned by the Depositor, one or more of
the Administrative Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Securities Registrar the
pledgee's right so to act with respect to such Preferred Securities and that
the pledgee is not the Depositor or an Administrative Trustee or any Affiliate
of the Depositor or any Administrative Trustee.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9.
"Payment Account" means a segregated non-interest bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Section 4.1.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization
or government or any agency or political subdivision thereof.
<PAGE> 15
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $[ ] and having the rights provided therefor in this
-----------
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Declaration of Trust solely
in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $[ ]
--------
per Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" has the same meaning as "Holder."
"Special Event" means a Tax Event or an Investment Company Event.
"Successor Property Trustee" has the meaning specified in Section 8.9.
"Successor Delaware Trustee" has the meaning specified in Section 8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Property Trustee, on behalf of the
Trust, of an Opinion of Counsel, rendered by a law firm having a national tax
and securities practice (which Opinion of Counsel shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein affecting taxation, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under this Declaration of Trust, there is more
<PAGE> 16
than an insubstantial risk in each case after the date thereof that (i) the
Trust is, or will be within 90 days after the date thereof, subject to United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Depositor on the Debentures is not,
or will not be, within 90 days after the date hereof, deductible, in whole or
in part, for United States federal income tax purposes or (iii) the Trust is,
or will be within 90 days after the date thereof, subject to more than de
minimus amount of other taxes, duties, assessments or other governmental
charges.
"Trust" means the Delaware business trust continued hereby and identified
on the cover page of this Declaration of Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means:
(a) the Debentures,
(b) any cash on deposit in, or owing to, the Payment Account and
(c) all proceeds and rights in respect of the foregoing to be held by
the Property Trustee pursuant to the terms of this Declaration of
Trust for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates, the Global Certificates or the Certificated Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
[ , ] among the Trust, the Depositor, and the Underwriter(s)
------ --- -----
named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME.
The Trust created hereby shall be known as "Louis Dreyfus Natural Gas
Trust [ ]", as such name may be modified from time to time by the
--
<PAGE> 17
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is 14000 Quail Springs Parkway, Suite 600, Oklahoma City, Oklahoma 73134.
SECTION 2.3. ORGANIZATIONAL EXPENSES.
The Depositor shall pay organizational expenses of the Trust as they
arise or shall, upon request of any Trustee, promptly reimburse such Trustee
for any such expenses paid by such Trustee. The Depositor shall make no claim
upon the Trust Property for the payment of such expenses.
SECTION 2.4. ISSUANCE OF THE PREFERRED SECURITIES.
On [ , ], the Depositor, individually and on behalf of the
------ -- ----
Trust, executed and delivered the Underwriting Agreement. On the Closing
Date, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Purchasers named in the
Underwriting Agreement Preferred Securities Certificates, in an aggregate
amount of [ ] Preferred Securities having an aggregate Liquidation
----------
Amount of $[ ], against receipt of the aggregate purchase price of
----------
such Preferred Securities of $[ ], which amount the Administrative
----------
Trustees shall promptly deliver to the Property Trustee.
SECTION 2.5. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF THE COMMON
SECURITIES.
Contemporaneously with the execution and delivery of this Declaration of
Trust, the Administrative Trustees, on behalf of the Trust, shall subscribe to
and purchase from the Depositor the Debentures, registered in the name of the
Property Trustee (in its capacity as such) and having an aggregate principal
amount equal to $[ ], and, in satisfaction of the purchase price for
----------
such Debentures, the Property Trustee, on behalf of the Trust, shall deliver
to the Depositor the sum of $[ ]. Contemporaneously therewith, an
----------
Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Depositor the Common Securities
<PAGE> 18
Certificates registered in the name of the Depositor, in an aggregate amount
of [ ] Common Securities having an aggregate Liquidation Amount of
----------
$[ ] against receipt of the aggregate purchase price of such Common
----------
Securities from the Depositor in the amount of $[ ].
----------
SECTION 2.6. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are:
(a) to issue and sell Trust Securities and use the proceeds from such
sale to acquire the Debentures;
(b) to distribute the Trust's income as provided in this Declaration of
Trust; and
(c) to engage in only those other activities necessary or incidental
thereto.
The Trust shall not borrow money, issue debt or reinvest proceeds derived
from investments, pledge any of its assets or otherwise undertake (or permit
to be undertaken) any activity that would cause the Trust not to be classified
for United States federal income tax purposes as a grantor trust. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all
the rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust
for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Delaware Business Trust Act.
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Declaration of Trust. Subject to the
limitations set forth in Section 2.6 and paragraph (b) of this
Section, and in accordance with the following provisions (i) and
(ii), the Trustees shall have the exclusive power, duty and the
authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with
respect to the following matters:
<PAGE> 19
(A) to issue and sell the Trust Securities, provided, however,
that the Trust may issue no more than one series of
Preferred Securities and no more than one series of
Common Securities, and, provided, further, that there
shall be no interests in the Trust other than the Trust
Securities, and the issuance of Trust Securities shall be
limited to simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date,
subject to the issuance of Trust Securities pursuant
to Section 5.5 and Successor Securities pursuant to
Section 9.5;
(B) to cause the Trust to perform on behalf of the Trust, the
Underwriting Agreement and the Certificate Depositary
Agreement and such other agreements as may be
necessary or incidental to the purposes and function of
the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended (the
"Securities Act"), and under state securities or blue sky
laws, and the qualification of this Declaration of Trust
as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to
the foregoing (only to the extent that such listing or
registration is requested by the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating agent in accordance with this Declaration
of Trust;
(F) to the extent provided in this Declaration of Trust, to
wind up the affairs of and liquidate the Trust and
prepare, execute and file the certificate of cancellation
with the Secretary of State of the State of Delaware;
(G) unless otherwise requested of the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise
required by the Delaware Business Trust Act or the Trust
Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any other Administrative
Trustees) any documents that the Administrative Trustees
have the power to execute pursuant to this Declaration of
Trust; and
(H) to take any action incidental to the foregoing as the
<PAGE> 20
Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration
of Trust including, but not limited to:
(x) causing the Trust not to be deemed to be an
"investment company" required to be registered under
the 1940 Act;
(y) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(z) cooperating with the Depositor to ensure that the
Debentures will be treated as indebtedness of the
Depositor for United States federal income tax
purposes;
provided that such action does not adversely affect in any
material respect the interests of Securityholders or the
remaining Trustees except as otherwise provided in Section
10.2(a).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(D) the distribution from the Trust Property of amounts owed
to the Securityholders in respect of the Trust Securities
in accordance with the Declaration of Trust;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures following an occurrence of
an Event of Default;
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Declaration of Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the
<PAGE> 21
certificate of cancellation with the Secretary of State of
the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust and
protect and conserve the Trust Property for the benefit of
the Securityholders (without consideration of the effect
of any such action on any particular Securityholder);
(J) subject to this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth in
Section 2.7(a)(i); and
(K) to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
(b) So long as this Declaration of Trust remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, the Trust
shall not, and the Trustees shall not and shall cause the Trust not
to (i) invest any proceeds received by the Trust from holding the
Debentures (rather, the Trustees shall distribute all such proceeds
to the Securityholders pursuant to the terms of this Declaration of
Trust and the Trust Securities), acquire any investments or engage
in any activities not authorized by this Declaration of Trust, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided
herein, (iii) take any action that would cause the Trust to fail or
cease to qualify as a "grantor trust" for United States federal
income tax purposes, (iv) make any loans or incur any indebtedness
for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of
the Trust Property, (vi) possess any power or otherwise act in such
a way as to vary the Trust assets or the terms of the Trust
Securities in any way whatsoever except as permitted by the terms
of this Declaration of Trust, or (vii) issue any securities
or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities. The
Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the
following actions (and any actions taken by the Depositor in
<PAGE> 22
furtherance of the following prior to the date of this
Declaration of Trust are hereby ratified and confirmed in all
respects):
(i) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement and
the Certificate Depositary Agreement and such other agreements
as may be necessary or incidental to the purposes and
functions of the Trust;
(ii) to file with the Commission and to execute on behalf of the
Trust a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments
thereto;
(iii) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any
such States and foreign jurisdictions;
(iv) to the extent necessary, to prepare for filing by the Trust
with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended,
including any amendments thereto and to assist in the listing
of the Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Depositor; and
(v) any other actions necessary or incidental to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not be
deemed to be an "investment company" required to be registered
under the 1940 Act, or taxed as a corporation for United States
federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal
income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this
Declaration of Trust, that each of the Depositor and the
Administrative Trustees determines in their discretion to be
necessary or desirable for such purposes, so long as such action
<PAGE> 23
does not adversely affect in any material respect the interests of
the Holders of the Preferred Securities except as otherwise
provided in Section 10.2(a).
SECTION 2.8. ASSETS OF TRUST.
The assets of the Trust shall consist of only the Trust Property.
SECTION 2.9. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee for the benefit of the Trust and the Securityholders
in accordance with this Declaration of Trust. Each Securityholder shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent
of the Property Trustee shall have exclusive control and sole right
of withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account in
accordance with this Declaration of Trust. All monies and other
property deposited or held from time to time in the Payment Account
shall be held by the Property Trustee in the Payment Account for
the exclusive benefit of the Securityholders and for distribution
as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures.
Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE[; CONVERSION]
SECTION 4.1. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accrue from the date of original issuance, or the most recent
Distribution Date (as defined herein) and, except in the event that
the Depositor exercises any right to defer the payment of interest
<PAGE> 24
on the Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on [ , , ] and
---------- ---------- ----------
[ ] of each year, commencing on [ , , ]
---------- --------- --- ----
(which dates correspond to the interest payment dates on the
Debentures), when, as and if available for payment by the Property
Trustee, as further described in paragraph (c) of this Section 4.1.
If any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distributions shall be made on the next succeeding day which is a
Business Day (and no interest shall accrue for the period from and
after such date until the next succeeding Business Day) with the
same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and the Distributions on the Trust Securities
shall be payable at a rate of [ ]% per annum of the Liquidation
----
Amount of the Trust Securities, such rate being the rate of
interest payable on the Debentures to be held by the Property
Trustee. The amount of Distributions payable for any period
shall be computed on the basis of a 360-day year of twelve 30-day
months. For periods less than a full quarter, Distributions shall
reflect interest on Debentures computed on the basis of the actual
number of elapsed days for any period based on a 360-day year of
twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Interest, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be the date which is the
fifteenth day (whether or not a Business Day) next preceding such
Distribution Date.
SECTION 4.2. REDEMPTION.
(a) Upon an optional redemption (as set forth in the Indenture) of
Debentures, the proceeds from such redemption shall be applied to
redeem Trust Securities having an aggregate Liquidation Amount
equal to the aggregate principal amount of the Debentures so
<PAGE> 25
redeemed by the Depositor, including pursuant to Section 4.4, at
the Optional Redemption Price, and upon a mandatory redemption (as
set forth in the Indenture) of Debentures, the proceeds from such
redemption shall be applied to redeem Trust Securities having an
aggregate Liquidation Amount equal to the aggregate principal
amount of the Debentures so redeemed by the Depositor, at the
Redemption Price.
(b) Notice of redemption (which notice will be irrevocable) shall be
given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the
Redemption Date to the Depositor and each Holder of Trust
Securities to be redeemed, at such Holder's address as it appears
in the Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as the
case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) (A) that a Holder of Preferred Securities who desires to
convert such Preferred Securities called for redemption
must satisfy the requirements for conversion contained in
Section 4.3 below; and
(B) the Conversion Price;]
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due
and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and
after said date; and
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the
Optional Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price,
as the case may be, with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price or the Optional Redemption Price,
as the case may be, shall be payable on each Redemption Date only
to the extent that the Trust has funds then on hand and available
in the Payment Account for the payment of such Redemption Price or
the Optional Redemption Price, as the case may be.
<PAGE> 26
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, so long as and to the extent the Preferred Securities
are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Preferred Securities are no
longer in book-entry only form, the Property Trustee, subject to
Section 4.2(c), will irrevocably deposit with the Paying Agent
funds sufficient to pay the applicable Redemption Price or Optional
Redemption Price, as the case may be, on such Preferred Securities
held in certificated form and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price
or the Optional Redemption Price, as the case may be, to the
Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Trust Securities called
for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then, upon the date of such
deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price or the Optional
Redemption Price, as the case may be, but without interest, and
such Trust Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price or the Optional
Redemption Price, as the case may be, is payable is not a Business
Day, then payment of the Redemption Price or the Optional
Redemption Price, as the case may be, payable on such date will
be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation
Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities that are to be redeemed.
The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, by lot or by such other method as
the Property Trustee shall deem customary and appropriate and which
may provide for the selection for redemption of portions (equal to
$[ ] or an integral multiple of $[ ] in excess
-------- --------
thereof) of the Liquidation Amount of the Preferred Securities. The
Property Trustee shall promptly notify the Securities Registrar in
<PAGE> 27
writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed; it being
understood that, in the case of Preferred Securities registered in
the name of and held of record by the Clearing Agency (or any
successor) or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the
procedures of the Clearing Agency or its nominee. For all purposes
of this Declaration of Trust, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to
be redeemed. In the event of any redemption, the Trust shall not be
required to:
(i) issue, register the transfer of or exchange any Preferred
Security during a period beginning at the opening of business
15 days before any selection for redemption of Preferred
Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to
have been given to all holders of Preferred Securities to be
so redeemed; or
(ii) register the transfer of or exchange on any Preferred
Securities so selected for redemption, in whole or in part,
except for the unredeemed portion of any Preferred Securities
being redeemed in part.
[SECTION 4.3. CONVERSION.
The Holders of Trust Securities, subject to the limitations set forth in
this Section, shall have the right at any time, at their option, to cause the
Conversion Agent to convert Trust Securities, on behalf of the converting
Holders, into shares of Common Stock in the manner described herein on and
subject to the following terms and conditions:
(a) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's
direction to the Conversion Agent to exchange such Trust Securities
for a portion of the Debentures in a principal amount equal to the
Liquidation Amount of such Trust Securities, and immediately
convert such amount of Debentures into fully paid and nonassessable
shares of Common Stock at an initial rate of [ ] shares of
-------
Common Stock for each Trust Security (which is equivalent to a
conversion price of $[ ] per share of Common Stock), subject
------
to the terms and certain adjustments set forth in the Indenture (as
so adjusted, "Conversion Price"). In case Trust Securities or a
portion thereof are called for redemption, such conversion right in
respect of the Trust Securities or portion thereof so called shall
<PAGE> 28
expire at the close of business on the Business Day immediately
preceding the Redemption Date, unless the Property Trustee fails to
irrevocably deposit funds sufficient to pay the Redemption Price or
Optional Redemption Price, as the case may be.
(b) In order to convert Trust Securities into Common Stock, the Holder
of such Trust Securities shall submit to the Conversion Agent an
irrevocable Notice of Conversion to convert Trust Securities on
behalf of such Holder, together, if the Trust Securities are in
certificated form, with such certificates. The Notice of
Conversion shall: (x) set forth the number of Trust Securities to
be converted and the name or names, if other than the Holder, in
which the shares of Common Stock should be issued and (y) direct
the Conversion Agent (a) to exchange such Trust Securities for a
portion of the Debentures held by the Property Trustee (at the rate
of exchange specified in the preceding paragraph) and (b) to
immediately convert such Debentures, on behalf of such Holder, into
Common Stock (at the conversion rate specified in the preceding
paragraph). The Conversion Agent shall notify the Property Trustee
of the Holder's election to exchange Trust Securities for a portion
of the Debentures held by the Property Trustee and the Property
Trustee shall, upon receipt of such notice, deliver to the
Conversion Agent the appropriate principal amount of Debentures for
exchange in accordance with this Section. The Conversion Agent
shall thereupon notify the Depositor of the Holder's election to
convert such Debentures into shares of Common Stock. Holders of
Trust Securities at the close of business on a Distribution payment
record date will be entitled to receive the Distribution paid on
such Trust Securities on the corresponding Distribution Date
notwithstanding the conversion of such Trust Securities following
such record date but prior to such Distribution Date. Except as
provided above, neither the Trust nor the Depositor will make, or
be required to make, any payment, allowance or adjustment upon any
conversion on account of any accumulated and unpaid Distributions
whether or not in arrears accrued on the Trust Securities
surrendered for conversion, or on account of any accumulated and
unpaid dividends on the shares of Common Stock issued upon such
conversion. Trust Securities shall be deemed to have been
converted immediately prior to the close of business on the day on
which an irrevocable Notice of Conversion relating to such Trust
Securities is received by the Conversion Agent in accordance with
the foregoing provision (the "Conversion Date"). The Person or
Persons entitled to receive the Common Stock issuable upon
conversion of the Debentures shall be treated for all purposes as
the record holder or holders of such Common Stock on the date
of conversion. As promptly as practicable on or after the
Conversion Date, the Depositor shall issue and deliver, or shall
cause to be issued and delivered, at the office of the Conversion
Agent a certificate or certificates for the number of full shares
of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same, unless otherwise
<PAGE> 29
directed by the Holder in the notice of conversion, and the
Conversion Agent shall distribute such certificate or certificates
and cash to such Person or Persons.
(c) Each Holder of a Trust Security by its acceptance thereof initially
appoints [ ] not in its individual capacity but
-------------------
solely as conversion agent (the "Conversion Agent") for the purpose
of effecting the conversion of Trust Securities in accordance with
this Section. In effecting the conversion and transactions
described in this Section, the Conversion Agent shall be acting as
agent of the Holders of Trust Securities directing it to effect
such conversion transactions. The Conversion Agent is hereby
authorized to (i) exchange Trust Securities from time to time for
Debentures held by the Trust in connection with the conversion of
such Trust Securities in accordance with this Section and (ii)
convert all or a portion of the Debentures into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with
the provisions of this Section and to deliver to the Property
Trustee any new Debenture or Debentures for any resulting
unconverted principal amount delivered to the Conversion Agent by
the Debenture Trustee.
(d) No fractional shares of Common Stock will be issued as a result of
conversion, but, in lieu thereof, such fractional interest will be
paid in cash by the Depositor to the Conversion Agent in an amount
equal to the Current Market Price of the fractional share of the
Common Stock, and the Conversion Agent will in turn make such
payment to the Holder or Holders of Trust Securities so converted.
(e) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust
Securities or as set forth in this Agreement or otherwise required
of the Property Trustee or by law or the Trust to pay any amounts
on account of such withholdings.]
SECTION 4.4. SPECIAL EVENT EXCHANGE OR REDEMPTION.
(a) If a Special Event shall occur and be continuing, the Property
Trustee shall exchange or cause to be exchanged all Outstanding
Trust Securities for Debentures having a principal amount equal to
the aggregate Liquidation Amount of the Trust Securities to be
exchanged and with accrued interest in an amount equal to any
unpaid Distribution (including any Additional Interest) on the
Trust Securities; provided, however, that, in the case of a Tax
Event, the Depositor shall have the right to (i) direct that less
than all, or none, as appropriate, of the Trust Securities be so
exchanged if and for so long as the Depositor shall have elected to
pay any Additional Sums such that the amount received by Holders of
Trust Securities not so exchanged in respect of Distributions and
other distributions are not reduced as a result of such Tax Event,
<PAGE> 30
and shall not have revoked any such election or failed to
make such payments or (ii) cause the Trust Securities to be
redeemed in the manner set forth below. If a Tax Event shall occur
or be continuing, the Depositor shall have the right, upon not less
than 30 nor more than 60 days' notice, to redeem the Debentures, in
whole or in part, for cash upon the later of (i) 90 days following
the occurrence of such Tax Event or (ii) [ ], 200[ ].
---------- --- -
Promptly following such redemption, Trust Securities with an
aggregate Liquidation Amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust
at 100% of the principal amount thereof together with accrued and
unpaid Distributions to the redemption date, on a pro rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an Exchange
Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class
mail to the Depositor and to each record Holder of Trust Securities
to be exchanged not fewer than 30 nor more than 60 days prior to
the date fixed for exchange thereof. For purposes of the
calculation of the date of exchange and the dates on which notices
are given pursuant to this paragraph (b), an Exchange Notice shall
be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to each Holder. Each Exchange
Notice shall be addressed to each Holder of Trust Securities
at the address of such Holder appearing in the books and records of
the Trust. Each Exchange Notice shall state: (A) the exchange
date; (B) the aggregate Liquidation Amount and any unpaid
Distributions (including any Additional Interest) on the Trust
Securities to be exchanged and the aggregate principal amount and
any accrued interest on the Debentures to be exchanged therefor;
(C) that on the exchange date the Trust Securities to be so
exchanged shall be exchanged for Debentures and that Distributions
on the Trust Securities so exchanged will cease to accumulate on
and after said date; and (D) the place or places where each Trust
Certificate to be exchanged is to be surrendered in exchange for
Debentures. No defect in the Exchange Notice or in the mailing
thereof with respect to any Trust Security shall affect the
validity of the exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if
all of the Outstanding Preferred Securities are represented by
Definitive Preferred Securities Certificates, the particular
Preferred Securities to be exchanged will be selected by the
Property Trustee from the Outstanding Preferred Securities not
previously called for redemption or exchange on a pro rata basis,
(ii) if all of the Outstanding Preferred Securities are represented
by Book-Entry Preferred Securities Certificates, the Property
Trustee shall provide for the selection for exchange of a portion
<PAGE> 31
of the Global Certificate representing the Book-Entry Preferred
Securities Certificates on a pro rata basis and (iii) if
Outstanding Preferred Securities are represented by both Definitive
Preferred Securities Certificates and Book-Entry Preferred
Securities Certificates, the Property Trustee shall select the
portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates and the particular Outstanding
Preferred Securities represented by Definitive Preferred Securities
Certificates to be exchanged on a pro rata basis. In the case of
clause (ii) or (iii) above, the particular Book-Entry Preferred
Securities Certificates to be exchanged shall be selected in
accordance with the applicable rules and procedures for the
Clearing Agency in whose name, or whose nominee's name, such global
certificate is then held. Any Preferred Securities Certificate
that is to be exchanged only in part shall be surrendered with due
endorsement or by a written instrument of transfer fully executed
by the Holder thereof (or its attorney duly authorized in
writing) and the Trust shall prepare and deliver to such Holder,
without service charge, a new Preferred Securities Certificate or
Certificates in aggregate stated Liquidation Amount equal to, and
in exchange for, the unredeemed portion of the Preferred Securities
Certificate so surrendered. The Common Securities shall be
exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the
date fixed for any such exchange, (i) if the Preferred Securities
are represented by Book-Entry Preferred Securities Certificates,
the Clearing Agency of its nominee, as the record Holder of such
Preferred Securities, will exchange through the Property Trustee
the Global Certificate representing the Preferred Securities to be
exchanged for a registered Global Certificate or certificates
representing the Debentures to be delivered upon such exchange,
(ii) if the Preferred Securities are represented by Definitive
Preferred Securities Certificates, the certificates representing
the Preferred Securities to be so exchanged will be deemed to
represent Debentures having a principal amount equal to the
aggregate stated Liquidation Amount of such Preferred Securities
until such certificates are presented to the Property Trustee for
exchange for definitive certificates representing Debentures and
(iii) all rights of the Holders of the Preferred Securities so
exchanged will cease, except for the right of such Holders to
receive Debentures. The Common Securities shall be exchanged in a
similar manner.
(e) Each Holder, by becoming a party to this Agreement pursuant to
Section 10.11 of this Agreement, will be deemed to have agreed to
be bound by these exchange provisions in regard to the exchange
of Trust Securities for Debentures pursuant to the terms described
above.
(f) Nothing in this Section 4.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust
<PAGE> 32
Securities, as set forth in this Agreement or under applicable law
or otherwise require the Property Trustee or the Trust to pay any
amounts on account of such withholdings.
(g) An exchange of Trust Securities for Debentures pursuant to this
Section 4.4 shall be made to Holders of Trust Securities as they
appear on the Securities Register for Trust Securities on the
relevant record date, which shall be the date which is the
fifteenth day (whether or not a Business Day) preceding the
exchange date.
SECTION 4.5. SUBORDINATION OF COMMON SECURITIES.
Payment of Distributions (including Additional Interest, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made pro rata based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date an
Event of Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Interest, if applicable) on, or the
Redemption Price of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Interest, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on
or prior thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all Outstanding Preferred Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Interest, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
SECTION 4.6. PAYMENT PROCEDURES.
Payments in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities are held by
a Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds, in accordance with the Certificate Depositary
Agreement on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
SECTION 4.7. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file (or cause to be filed) all United States
federal, state and local tax and information returns and reports required to
be filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared or filed) Form
1041 or the appropriate Internal Revenue Service form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
<PAGE> 33
furnish (or cause to be prepared and furnished) to each Security holder a
Form 1099 or the appropriate Internal Revenue Service form required to be
furnished to such Securityholder or the information required to be provided on
such form. The Administrative Trustees shall provide (or cause to be
provided) the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Administrative Trustees shall comply with United States federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
SECTION 4.8. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee, upon receipt of written notice from the Depositor or the
Administrative Trustees, shall promptly pay from such Additional Sums any
taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes), as indicated in such notice, imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.9. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities (and
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (or Owner) has directly received pursuant to
Section 508 of the Indenture in accordance with the terms of Section 6.8
hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the formation of the Trust and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $[ ] Liquidation Amount and integral multiples of
--
$[ ] in excess thereof, and the Common Securities Certificates shall
--------
be issued in denominations of $[ ] Liquidation Amount and integral
--------
multiples thereof. The consideration received by the Trust for the issuance
of the Trust Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust. Initially the Preferred
Securities will be represented by a certificate registered in the Securities
Register in the name of a Clearing Agency or a nominee thereof, in global form
(the "Global Certificate"). The Trust Securities Certificates shall be
<PAGE> 34
executed on behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee and the Preferred Securities Certificates shall be
authenticated by the Property Trustee. Trust Securities Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Declaration
of Trust, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such
Trust Securities Certificates. A transferee of a Trust Securities Certificate
shall become a Securityholder, and shall be entitled to the rights and subject
to the obligations of a Securityholder hereunder, upon due registration of
such Trust Securities Certificate in such transferee's name pursuant to
Section 5.4.
SECTION 5.3. DELIVERY OF TRUST SECURITIES CERTIFICATES
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor, signed by its Chairman of the
Board, any Vice Chairman, its President, or any Vice President, Treasurer or
Assistant Treasurer or Controller without further corporate action by the
Depositor, in authorized denominations. A Common Securities Certificate shall
not be valid until executed by at least one Administrative Trustee. A
Preferred Securities Certificate shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Securities
Certificate has been authenticated under this Declaration of Trust. Upon a
written order of the Trust signed by one Administrative Trustee, the Property
Trustee shall authenticate the Preferred Securities Certificates for original
issue. The Property Trustee may appoint an authenticating agent acceptable to
the Administrative Trustees to authenticate Preferred Securities Certificates.
An authenticating agent may authenticate Preferred Securities Certificates
whenever the Property Trustee may do so. Each reference in this Declaration of
Trust to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the Property
Trustee to deal with the Depositor or an Affiliate with respect to the
authentication of Preferred Securities.
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES.
The Securities Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a Securities Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security at
<PAGE> 35
an office or agency of the Depositor designated pursuant to Section 5.8 for
such purpose, the Depositor shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the other provisions of this
Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount,
upon surrender of the Preferred Securities to be exchanged at any such office
or agency. Whenever any Preferred Securities are so surrendered for exchange,
the Depositor shall execute, and the Property Trustee shall authenticate and
deliver, the Preferred Securities which the Holder making the exchange is
entitled to receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be the valid obligations of the Trust,
evidencing the same rights, and entitled to the same benefits under this
Declaration of Trust, as the Securities surrendered upon such registration of
transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Depositor or the
Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the
Securities Registrar duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Preferred Securities Certificates.
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for authentication, where applicable,
and delivery, in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicative Trust
<PAGE> 36
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS.
The Property Trustee and the Securities Registrar shall treat the Person
in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Property Trustee nor the Securities Registrar shall be bound by
any notice to the contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees or the Depositor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Declaration of Trust) a list, in
such form as the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of the most recent record date (a) to the
Property Trustee, quarterly at least 5 Business Days before each Distribution
Date, and (b) to the Property Trustee, as promptly as practicable after
receipt by the Depositor of a request therefor from the Property Trustee in
order to enable the Property Trustee to discharge its obligations under this
Declaration of Trust, in each case to the extent such information is in the
possession or control of the Administrative Trustees or the Depositor and is
not identical to a previously supplied list or has not otherwise been received
by the Property Trustee in its capacity as Securities Registrar. The rights
of Securityholders to communicate with other Securityholders with respect to
their rights under this Declaration of Trust or under the Trust Securities,
and the corresponding rights of the Trustee shall be as provided in the Trust
Indenture Act, except to the extent Section 3819 of the Delaware Business
Trust Act would require greater access to such information, in which case the
latter shall apply. Each Holder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY.
The Securities Registrar shall maintain in The City of New York an office
or offices or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer, exchange [or conversion] and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Securities Registrar initially
designates [ , , ],
--------------------- --------------- ---------------
Attention: Corporate Trust Services, as its principal corporate trust office
for such purposes. The Securities Registrar shall give prompt written notice
to the Depositor and to the Securityholders of any change in the location of
<PAGE> 37
the Securities Register or any such office or agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT.
In the event that the Preferred Securities are not in book-entry form
only, the Trust shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (the "Paying Agent") where the Preferred Securities
may be presented for payment. The Paying Agent shall make Distributions to
Securityholders from the Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Administrative Trustees. Any
Paying Agent shall have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration of Trust in any
material respect. The Paying Agent shall initially be the Property Trustee,
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor in their sole discretion. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Property Trustee and the Depositor. In
the event that the Property Trustee shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is reasonably
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). Each successor Paying Agent or any
additional Paying Agent shall agree with the Trustees that, as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to each
Securityholder. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee
also in its role as Paying Agent, for so long as the Property Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent
permitted by law, any attempted transfer of the Common Securities shall be
void except as permitted under Section 10.6. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. GLOBAL SECURITIES; NON-GLOBAL SECURITIES; COMMON SECURITIES
CERTIFICATE.
(a) Each Global Certificate authenticated under this Declaration of
Trust shall be registered in the name of the Clearing Agency
<PAGE> 38
designated by the Depositor for such Global Certificate or a
nominee thereof and delivered to such Clearing Agency or a nominee
thereof or custodian therefor, and each such Global Certificate
shall constitute a Preferred Security for all purposes of this
Declaration of Trust.
(b) If a Global Certificate is to be exchanged for Certificated
Preferred Securities or cancelled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its nominee or custodian to
the Property Trustee, as Securities Registrar, for exchange or
cancellation as provided in this Article 5. If any Global
Certificate is to be exchanged for Certificated Preferred
Securities or cancelled in part, or if another Preferred Security
is to be exchanged in whole or in part for a beneficial interest in
any Global Certificate, in each case, as provided in Section 5.4,
then either (i) such Global Certificate shall be so surrendered for
exchange or cancellation as provided in this Article 5 or (ii) the
Liquidation Amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or
cancelled, or equal to the principal amount of such Certificated
Preferred Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment
made on the records of the Property Trustee, as Securities
Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global
Certificate, the Property Trustee shall, subject to Section 5.4 and
as otherwise provided in this Article 5, authenticate and deliver
any Preferred Securities issuable in exchange for such Global
Certificate (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Clearing Agency
or its authorized representative.
Upon the request of the Property Trustee in connection with the
occurrence of any of the events specified in the preceding
paragraph, the Depositor shall cause as promptly as practicable to
be made available to the Property Trustee a reasonable supply of
Preferred Securities that are not in the form of Global
Certificates. The Property Trustee shall be entitled to rely upon
any order, direction or request of the Clearing Agency or its
authorized representative which is given or made pursuant to
this Article 5 if such order, direction or request is given or made
in accordance with the Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Certificate or any portion thereof, whether pursuant to this
Article 5 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Certificate, unless such Preferred
Security is registered in the name of a Person other than the
Clearing Agency for such Global Certificate or a nominee thereof.
<PAGE> 39
(d) The Clearing Agency or its nominee, as registered owner of a Global
Certificate, shall be the holder of such Global Certificate for all
purposes under the Declaration of Trust and the Preferred
Securities, and owners of beneficial interests in a Global
Certificate shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such Owner's beneficial interest in a
Global Certificate will be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the
Clearing Agency or its nominee or its participants and such owners
of beneficial interests in a Global Certificate will not be
considered the owners or holders of such Global Certificate for any
purpose of this Declaration of Trust or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 5.12. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Owners is
required under this Declaration of Trust, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners pursuant to
Section 5.13, the Administrative Trustees and the Property Trustee shall give
all such notices and communications specified herein to be given to Owners to
the Clearing Agency, and shall have no obligations to provide notices directly
to the Owners.
SECTION 5.13. DEFINITIVE PREFERRED SECURITIES CERTIFICATES.
Notwithstanding any other provision in this Declaration of Trust, no
Global Certificate may be exchanged in whole or in part for Preferred
Securities registered, and no transfer of a Global Certificate in whole or in
part may be registered, in the name of any Person other than the Clearing
Agency for such Global Certificate or a nominee thereof unless (i) such
Clearing Agency (A) has notified the Depositor that it is unwilling or unable
to continue as Clearing Agency for such Global Certificate or (B) has ceased
to be a clearing agency registered as such under the Securities Exchange Act
of 1934, as amended, and in either case the Trust and the Depositor thereupon
fails to appoint a successor Clearing Agency, (ii) the Depositor, at its
option, notifies the Property Trustee in writing that it elects to cause the
issuance of the Preferred Securities in certificated form or (iii) there shall
have occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default. In all cases,
Certificated Preferred Securities delivered in exchange for any Global
Certificate or beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by or on behalf of the
Clearing Agency (in accordance with its customary procedures).
SECTION 5.14. RIGHTS OF SECURITYHOLDERS.
The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
<PAGE> 40
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Declaration of Trust. The Trust
Securities shall have no preemptive or similar rights and, when issued and
delivered to Securityholders against payment of the purchase price therefor,
will be fully paid and nonassessable by the Trust. The Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Section 8.2 and 10.2 and in
the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) Subject to the other provisions of this Section and Section 8.2
hereof:
(i) In the event the consent of the Property Trustee, as the
holder of the Debentures, is required under the Indenture with
respect to any amendment, modification or termination of the
Indenture or the Debentures, the Property Trustee shall
request the written direction of the Holders of the
Outstanding Trust Securities with respect to such amendment,
modification or termination. The Property Trustee shall vote
with respect to such amendment, modification or termination as
directed by a majority in aggregate Liquidation Amount of
the Outstanding Trust Securities voting together as a single
class; provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of
(A) holders of Debentures representing a specified percentage
greater than a majority in principal amount of the Debentures
or (B) each holder of Debentures affected thereby, the
Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of
clause (A) above, the vote of Holders of Outstanding Trust
Securities representing such specified percentage of the
<PAGE> 41
aggregate Liquidation Amount of the Trust Securities, or, in
the case of clause (B) above, each Holder of Outstanding Trust
Securities affected thereby; and provided further that the
Property Trustee shall be under no obligation to take any
action in accordance with the directions of the Holders of
Outstanding Trust Securities unless the Property Trustee shall
have received, at the expense of the Depositor, an Opinion of
Counsel experienced in such matters to the effect that the
Trust will not be classified for United States Federal income
tax purposes as an association taxable as a corporation or a
partnership on account of such action.
(ii) So long as any Debentures are held by the Property Trustee,
the Property Trustee shall not (A) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under
Section 513 of the Indenture or (C) exercise any right to
rescind or annul a declaration of acceleration of the maturity
of the principal of the Debentures, without, in each case,
obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount the Outstanding Preferred
Securities; provided that, where any such action under the
Indenture requires the vote or consent of (1) holders of
Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each
holder of Debentures affected thereby, the Property Trustee
may only vote with respect that action as directed by, the
case of clause (1) above, the vote of the Holders of
Outstanding Preferred Securities representing such specified
percentage of the aggregate Liquidation Amount of Outstanding
Preferred Securities, or, in the case of clause (2) above,
each Holder of Outstanding Preferred Securities affected
thereby; and provided further that, except with respect to
directing the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or
the Debenture Trustee as set forth above, the Property Trustee
shall be under no obligation to take any of the foregoing
actions unless the Property Trustee shall have received, at
the expense of the Depositor, an Opinion of Counsel
experienced in such matters to the effect that the Trust will
not be classified for United States Federal income tax
purposes as an association taxable as a corporation or a
partnership on account of such action. The Administrative
Trustees and the Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of
a majority in Liquidation Amount of the Preferred Securities,
except by subsequent vote of the Holders of a majority in
Liquidation Amount of the Preferred Securities.
(iii) The Property Trustee shall notify each Holder of Trust
Securities of any notice of default received from the
<PAGE> 42
Debenture Trustee with respect to the Debentures. If an Event
of Default has occurred and is continuing, then the Holders of
a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of
any trust or power conferred upon the Property Trustee under
this Declaration of Trust, including the right to direct the
Property Trustee to exercise the remedies available to it as a
holder of the Debentures.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect the dissolution,
winding-up or termination of the Trust, other than pursuant to the
terms of this Declaration of Trust, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of a majority in
aggregate Liquidation Amount of the Outstanding Preferred
Securities.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Preferred Securityholder of
record, at its registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.3. MEETINGS OF PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders
of record of 25% of the Preferred Securities (based upon their Liquidation
Amount) and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of Preferred
Securities to vote on any matters as to which such Holders are entitled to
vote.
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum
at any meeting of Securityholders. If a quorum is present at a meeting, an
affirmative vote by the Holders of record of Preferred Securities present, in
person or by proxy, holding more than a majority of the Preferred Securities
(based upon their Liquidation Amount) held by Holders of record of Preferred
Securities present, either in person or by proxy, at such meeting shall
constitute the action of the Securityholders, unless this Declaration of Trust
requires a greater number of affirmative votes.
<PAGE> 43
SECTION 6.4. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $[ ] of
--------
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote. Notwithstanding
that holders of Preferred Securities are entitled to vote or consent under any
of the circumstances described above, any of the Preferred Securities that are
owned at such time by the Depositor, the Administrative Trustees or any
Affiliate of the Depositor or any Administrative Trustee shall, for purposes
of such vote or consent, be treated as if such Preferred Securities were not
Outstanding.
SECTION 6.5. PROXIES, ETC.
At any meeting of Securityholders, any Securityholders entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at
which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one
or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or represented by
proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall
not be received in respect of such Trust Securities. A proxy purporting to be
executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust or Preferred Securities (as the case may be and based upon
their Liquidation Amount) entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of
this Declaration of Trust) shall consent to the action in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate
in any Distribution on the Trust Securities in respect of which a record date
is not otherwise provided for in this Declaration of Trust, or for the purpose
of any other action, the Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Securityholders or
the payment of Distributions or other action, as the case may be, as a record
<PAGE> 44
date for the determination of the identity of the Securityholders of record
for such purposes.
SECTION 6.8. ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Declaration of Trust to be given,
made or taken by Securityholders or Owners may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Declaration of Trust and (subject to Section 8.1) conclusive in favor of the
Trustees, if made in the manner provided in this Section. The fact and date
of the execution by any Person of any such instrument or writing may be proved
by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than the signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of the
signer's 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 any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every
Trust 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such
Liquidation Amount. If any dispute shall arise between the Securityholders and
the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article 6, then the determination of such
<PAGE> 45
matter by the Property Trustee shall be conclusive with respect to such
matter. Upon the occurrence and continuation of an Event of Default, the
holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debentures against the Depositor. If
the Property Trustee fails to enforce its rights as holder of the Debentures
after a request therefor by a holder of Preferred Securities, such holder may,
to the fullest extent permitted by law, proceed to enforce such rights
directly against the Depositor. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Depositor to pay interest or principal on the Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the Redemption Date), then a holder of Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
for enforcement of payment to such holder of the principal amount of or
interest on Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such holder after the
respective due date specified in the Debentures (a "Direct Action"). In
connection with any such Direct Action, the rights of the Depositor will be
subrogated to the rights of any holder of the Preferred Securities to the
extent of any payment made by the Depositor to such holder of Preferred
Securities as a result of such Direct Action. A Securityholder may institute
a legal proceeding directly against the Depositor under the Guarantee to
enforce its rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the Guarantee), the
Trust or any Person or entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably
related to such Securityholder's interest as a Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that (each such representation and warranty
made by the Property Trustee and the Delaware Trustee being made only with
respect to itself):
(a) the Property Trustee is a banking corporation duly organized under
the laws of the United States of America or any State thereof and
authorized under such laws to exercise corporate trust powers and
is validly existing and in good standing under the laws of its
jurisdiction of organization;
<PAGE> 46
(b) the Delaware Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and
perform its obligations under this Declaration of Trust and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Declaration of Trust;
(d) this Declaration of Trust has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(e) this Declaration of Trust has been duly authorized, executed and
delivered by the Delaware trustee under Delaware law (excluding tax
and securities laws) constitutes the valid and legally binding
agreement of the Delaware trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance by the Property Trustee of
this Declaration of Trust have been duly authorized by all
necessary corporate or other action on the part of the Property
Trustee and does not require any approval of stockholders of the
Property Trustee and such execution, delivery and performance will
not (i) violate the Property Trustee's charter or by-laws, (ii)
violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or
imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which
the Property Trustee is a party or by which it is bound, or (iii)
to the Property Trustee's knowledge violate any law, governmental
rule or regulation of the United States or the State of Delaware
governing the banking, corporate, or trust powers of the Property
Trustee or any order, judgment or decree applicable to the Property
Trustee;
(g) the execution, delivery and performance by the Delaware Trustee of
this Declaration of Trust have been duly authorized by all
necessary corporate or other action on the part of the Delaware
Trustee and does not require any approval of stockholders of the
Delaware Trustee and such execution, delivery and performance will
not (i) violate the Delaware Trustee's charter or by-laws, (ii)
violate any provision of, or constitute, with or without notice or
<PAGE> 47
lapse of time, a default under, or result in the creation or
imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which
the Delaware Trustee is a party or by which it is bound, or (iii)
to the Delaware Trustee's knowledge violate any law, governmental
rule or regulation of the United States or the State of Delaware
governing the banking, corporate, or trust powers of the Delaware
Trustee or any order, judgment or decree applicable to the Delaware
Trustee;
(h) neither the authorization, execution or delivery by the Property
Trustee of this Declaration of Trust nor the consummation of any of
the transactions by the Property Trustee contemplated herein or
therein to its knowledge requires the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or agency
under any existing federal law governing the banking, corporate or
trust powers of the Property Trustee under the laws of the United
States or the State of Delaware (excluding any securities laws of
any jurisdiction);
(i) neither the authorization, execution or delivery by the Delaware
Trustee of this Declaration of Trust nor the consummation of any of
the transactions by the Delaware Trustee contemplated herein or
therein to its knowledge requires the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or agency
under any existing federal law governing the banking, corporate or
trust powers of the Delaware Trustee under the laws of the United
States or the State of Delaware (excluding any securities laws of
any jurisdiction);
(j) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee
in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee or
the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Declaration of
Trust.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been
<PAGE> 48
duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Declaration of Trust and the Securityholders
will be, as of such date, entitled to the benefits of this
Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws
of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Declaration of Trust.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Declaration of Trust and, in the case of the
Property Trustee, by the Trust Indenture Act. The Property
Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties and
obligations as are specifically set forth in this Declaration of
Trust and the Trust Indenture Act and no implied covenants shall be
read into this Declaration of Trust against the Property Trustee.
In case an Event of Default has occurred (that has not been cured
or waived pursuant to Section 8.2) of which a responsible officer
of the Property Trustee has actual knowledge, the Property Trustee
shall exercise such rights and powers vested in it by this
Declaration of Trust and the Trust Indenture Act, and use the same
degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or
her own affairs. Notwithstanding the foregoing, no provision of
this Declaration of Trust shall require the Trustees to expend or
risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the
exercise of any of their rights or powers, if they 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 Declaration of Trust relating to the conduct or
affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. Nothing in
this Declaration of Trust shall be construed to release the
Administrative Trustees or the Delaware Trustee from liability
for their own grossly negligent action, their own grossly negligent
failure to act, or their own willful misconduct. To the extent
<PAGE> 49
that, at law or in equity, an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder
for such Administrative Trustee's good faith reliance on the
provisions of this Declaration of Trust or advice of counsel. The
provisions of this Declaration of Trust, to the extent that they
restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the
Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that
there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make
payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the
extent legally available for distribution to it as herein provided
and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This Section
8.1(b) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration of Trust or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of t he Holders of a majority in
Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this
Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property
<PAGE> 50
as fiduciary assets, subject to the protections and
limitations on liability afforded to the Property Trustee
under this Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with
the Depositor and money held by the Property Trustee need
not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property
Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) neither the Property Trustee nor the Administrative Trustees
shall be responsible for monitoring each other's compliance or
the compliance of the Depositor with their respective
duties under this Declaration of Trust, nor shall the Property
Trustee or the Administrative Trustees be liable for each
other's default or misconduct or that of the Depositor.
SECTION 8.2. NOTICE OF DEFAULTS.
(a) Within ten days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the holders of Preferred
Securities, the Administrative Trustees and the Depositor, unless
such Event of Default shall have been cured or waived, provided
that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the
Property Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee, or
a trust committee of directors and/or responsible officers of
the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Preferred
Securities.
(b) Within ten days after the receipt of notice of the Depositor's
exercise of any right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8,
notice of such exercise to the Securityholders, unless such
exercise shall have been revoked.
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the
underlying Debenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration of Trust shall also not be waivable; or
<PAGE> 51
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of
Default under the Declaration of Trust may only be waived by
the vote of the Holders of the same proportion in Liquidation
Amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the
Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration of Trust and the Preferred
Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this
Declaration of Trust, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to
the Preferred Securities or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of an
Event of Default with respect to the Preferred Securities shall
also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration of Trust without
any further act, vote, or consent of the Holders of the Common
Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the
Common Securities, waive any Event of Default with respect to the
Common Securities and its consequences, provided that, if the
underlying Debenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this
Section 8.2(d), the Event of Default under the Declaration of
Trust shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration of
Trust as provided below in this Section 8.2(d), the Event of
Default under the Declaration of Trust may only be waived by
the vote of the Holders of the same proportion in Liquidation
Amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the
Debentures outstanding; provided further, that each Holder of
Common Securities will be deemed to have waived any such Event
of Default and all Events of Default with respect to the
<PAGE> 52
Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated, and until such Events
of Default have been so cured, waived or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to
direct the Property Trustee in accordance with the terms of
the Securities. The provisions of Section 6.1(b) and this
Section 8.2(d) shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this
Declaration of Trust and the Preferred Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 8.2(d), upon such waiver, any such
default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this
Declaration of Trust, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect
to the Common Securities or impair any right consequent
thereon.
(e) A waiver of a Debenture Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of
Default under this Declaration of Trust. The foregoing provisions
of this Section 8.2(e) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration of
Trust and the Preferred Securities, as permitted by the Trust
Indenture Act.
(f) The Holders of a majority in liquidation amount of Preferred
Securities will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee, including the right to direct
the Property Trustee to exercise the remedies available to it as
holder of the Debentures; provided, however, that the Property
Trustee shall have the right to decline to follow any such
direction if the Property Trustee shall determine that the action
so directed would be unjustly prejudicial to the Holders not taking
part in such direction or if the Property Trustee, being advised
by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Property Trustee, in good
faith, by its board of directors or trustees, executive committee,
or a trust committee of directors or trustees and/or responsible
officers, shall determine that the action or proceedings so
directed would involve the Property Trustee in personal liability.
If the Property Trustee fails to enforce its rights under the
Debentures after the Holders of a majority in liquidation amount of
<PAGE> 53
the Preferred Securities have so directed the Property Trustee, a
holder of record of such Preferred Securities may, to the fullest
extent permitted by law, institute a legal proceeding against the
Depositor to enforce the Property Trustee's rights under the
Debentures without first instituting first instituting any legal
proceeding against the Property Trustee or any other Person.
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b) if no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Declaration of Trust the Property
Trustee is required to decide between alternative courses of action
or (ii) in construing any of the provisions in this Declaration of
Trust the Property Trustee finds the same ambiguous or inconsistent
with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this
Declaration of Trust, then, except as to any matter as to which the
Holders of Preferred Securities are entitled to vote under the
terms of this Declaration of Trust, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions
of the Depositor as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided,
however, that if the Property Trustee does not receive such
instructions of the Depositor within ten Business Days after it has
delivered such notice, or such reasonably shorter period of time
set forth in such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with
this Declaration of Trust as it shall deem advisable and in the
best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Declaration of Trust shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, the
<PAGE> 54
Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate and an Opinion
of Counsel which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to accomplish any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the 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 and in accordance with such advice; and the Property
Trustee shall have the right at any time, upon prior notice to the
Depositor, to seek instructions concerning the administration of
this Declaration of Trust from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration of Trust
at the request or direction of any of the Securityholders pursuant
to this Declaration of Trust, unless such Securityholders shall
have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolutions, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in
writing to do so by Holders of record of 25% or more of the
Preferred Securities (based upon their Liquidation Amount), but the
Property Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys or an Affiliate, provided that the
Property Trustee shall be responsible for its own negligence,
recklessness or bad faith with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Declaration of Trust the
<PAGE> 55
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request instructions
from the Holders of the Trust Securities, which instructions may
only be given by the Holders of the same proportion in Liquidation
Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting
in accordance with such instructions; and
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration of Trust.
No provision of this Declaration of Trust shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property
Trustee shall be construed to be a duty.
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall not be taken as the statements of the Trustees, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. MAY HOLD SECURITIES.
Except as provided in the definition of the term "Outstanding" in Article
1, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Section 8.8 and 8.12, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such
other agent.
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay the Trustees from time to time such compensation for all
services rendered by them hereunder as the parties shall agree
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
<PAGE> 56
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with
any provision of this Declaration of Trust (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 gross negligence (or, in the
case of the Property Trustee, ordinary negligence), willful
misconduct or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative
or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred
by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified
Person by this Declaration of Trust, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of
gross negligence (or, in the case of the Property Trustee, ordinary
negligence), willful misconduct or bad faith with respect
to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) of the Indenture occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under the Bankruptcy Reform Act of 1978 or any
successor statute.
SECTION 8.7. PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such person shall
be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall
cease to be eligible in accordance with the provisions of this
<PAGE> 57
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years
of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall be either (i) a
natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through
one or more persons authorized to bind such entity.
SECTION 8.8. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property 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 Declaration of Trust. The Property Trustee's services as Trustee under
the Guarantee and as Debenture Trustee shall not be deemed to constitute a
conflicting interest.
SECTION 8.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) Subject to Sections 8.9(b) and 8.9(c), any Trustee (the "Relevant
Trustee") may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and (ii) after the issuance
of any Securities, by vote of the Holders of a majority in
Liquidation Amount of the Common Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (a
"Successor Property Trustee") has been appointed and has accepted
such appointment by instrument executed by such Successor Property
Trustee and delivered to the Trust, the Depositor and the removed
Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.7 (a
"Successor Delaware Trustee") has been appointed and has accepted
such appointment by instrument executed by such Successor Delaware
Trustee and delivered to the Trust, the Depositor and the removed
Delaware Trustee.
<PAGE> 58
(d) A Trustee appointed to office shall hold office until his, her or
its successor shall have been appointed or until his, her or its
death, removal, resignation, dissolution or liquidation. Any
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Depositor and the Trust, which
resignation shall take effect upon such delivery or upon such later
date as is specified therein; provided, however, that: (i) no such
resignation of the Trustee that acts as the Property Trustee shall
be effective: (1) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed
by such Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or (2) until the assets
of the Trust have been completely liquidated and the proceeds
thereof distributed to the holders of the Securities; and (ii) no
such resignation of the Trustee that acts as the Delaware Trustee
shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed
by such Successor Delaware Trustee and delivered to the Trust, the
Depositor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts
promptly to appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be, if the Property Trustee or
the Delaware Trustee delivers an instrument of resignation in
accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in
this Section 8.9 within 60 days after delivery pursuant to this
Section 8.9 of an instrument of resignation or removal, the
Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware
Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
(h) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.8 and
shall give notice to the Depositor. Each notice shall include the
name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
(i) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a
<PAGE> 59
Delaware Trustee who is a natural person dies or becomes, in the
opinion of the Depositor, incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by
(a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor
(with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or the Delaware
Trustee, as the case may be, set forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall survive
any Trustee's resignation or removal.
SECTION 8.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee, such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor 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 if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee
hereunder.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Trust or any successor Relevant Trustee, such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be. No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
<PAGE> 60
SECTION 8.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person 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 Relevant Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor
of such Relevant 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.
SECTION 8.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust
Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 8.13. REPORTS BY PROPERTY TRUSTEE.
(a) To the extent required by the Trust Indenture Act, within 60 days
after May 15 of each year commencing with May 15, [ ] the
----
Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8 and to the Depositor, a brief report
dated as of such May 15 with respect to: (i) its eligibility under
Section 8.7 or, in lieu thereof, if to the best of its knowledge it
has continued to be eligible under said Section, a written
statement to such effect; (ii) a statement that the Property
Trustee has complied with all of its obligations under this
Declaration of Trust during the twelve- month period (or, in the
case of the initial report, the period since the Closing Date)
ending with such May 15 or, if the Property Trustee has not
complied in any material respects with such obligations, a
description of such noncompliance; and (iii) any change in the
property and funds in its possession as Property Trustee since the
date of its last report and any action taken by the Property
Trustee in the performance of its duties hereunder which it has not
previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under
this Declaration of Trust as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of such report shall, at the time of such transmissions to
<PAGE> 61
Holders, be filed by the Property Trustee with each national
securities exchange or self-regulatory organization upon which the
Trust Securities are listed, with the Commission and with the
Depositor.
SECTION 8.14. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
as required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 8.15. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Declaration of Trust
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the
form of an Officers' Certificate.
SECTION 8.16. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of
all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.16(a),
or if the number of Trustees is increased pursuant to Section
8.16(a), a vacancy shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled
by the appointment of an Administrative Trustee in accordance with
Section 8.9, the Administrative Trustees in office, regardless of
their number (and notwithstanding any other provision of this
Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.17. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any
<PAGE> 62
documents contemplated in Section 2.7(a), including any
registration statement or amendment thereof filed with
the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either
in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 8.18. APPOINTMENT OF ADMINISTRATIVE TRUSTEES.
(a) The Administrative Trustees shall initially be [ ],
----------------
an individual, and [ ], an individual, and their
-----------------
successors shall be appointed by the Holders of a majority in
Liquidation Amount of the Common Securities and may resign or be
removed by the Holders of a majority in Liquidation Amount of the
Common Securities at any time. Upon any resignation or removal, the
Depositor shall appoint a successor Administrative Trustee. If at
any time there is no Administrative Trustee, the Property Trustee
or any Holder who has been a Holder of Trust Securities for at
least six months may petition any court of competent jurisdiction
for the appointment of one or more Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with this Section 8.18, the
Administrative Trustees in office, regardless of their number (and
not withstanding any other provision of this Agreement), shall have
all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees
by this Declaration of Trust.
(c) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, if any Administrative Trustee who is a
natural person dies or becomes, in the opinion of the Holders of a
majority in Liquidation Amount the Common Securities, incompetent
or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by the unanimous act of the remaining
Administrative Trustees, if there were at least two of them prior
to such vacancy, and by the Depositor, if there were not two such
Administrative Trustees immediately prior to such vacancy (with the
successor being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 8.7).
<PAGE> 63
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
[ , ] (the "Expiration Date"), and shall terminate following the
- ------ -- ----
distribution of the Trust Property and other acts in accordance with Section
9.3.
SECTION 9.2. EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax Event
following which the Depositor has elected to (i) pay any Additional
Sums (in accordance with Section 4.4) such that the net amount
received by Holders of Preferred Securities in respect of
Distributions is not reduced as a result of such Tax Event and the
Depositor has not revoked any such election or failed to make such
payments or (ii) redeem all or some of the Debentures pursuant to
Section 4.4(a);
(c) the redemption, [conversion] or exchange of all of the Trust
Securities;
(d) upon the repayment of the Debentures or at such time as no
Debentures are outstanding;
(e) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(f) receipt by the Property Trustee of written notice from the
Depositor at any time (which notice is optional and wholly within
the discretion of the Depositor) of its intention to terminate the
Trust and distribute the Debentures in exchange for the Preferred
Securities.
SECTION 9.3. TERMINATION.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following:
(a) the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the
<PAGE> 64
redemption of all of the Trust Securities pursuant to Section 4.2,
of all amounts required to be distributed hereunder upon the final
payment of the Trust Securities;
(b) the payment of all expenses owed by the Trust;
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders, and
(d) the filing of the certificate of cancellation with the Secretary of
State of the State of Delaware pursuant to Section 3810 of the
Delaware Business Trust Act. Notwithstanding any provision hereof
to the contrary, each of Depositor's obligations set forth in
Section 8.3 hereof shall survive and continue regardless of the
occurrence of any of the foregoing.
SECTION 9.4. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), (e) or
(f) of Section 9.2 occurs or upon the Expiration Date, the Trust
shall be liquidated by the Administrative Trustees and the Property
Trustee as expeditiously as the Trustees determine to be possible
by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Securityholder an
aggregate principal amount of Debentures equal to the aggregate
Liquidation Amount of Trust Securities held by such Holder, subject
to Section 9.4(e). Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
later than 30 nor more than 60 days prior to the Liquidation Date
to each Holder of Trust Securities at such Holder's address as it
appears in the Securities Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange
will be deemed to represent an aggregate principal amount of
Debentures equal to the aggregate Liquidation Amount of
Preferred Securities held by such Holder; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.4(e) applies, receive a
Liquidation Distribution, as the Administrative Trustees
or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(e) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date
<PAGE> 65
for such distribution (which shall be not more than 45 days prior
to the Liquidation Date) and, either itself acting as exchange
agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to
effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed
to be Outstanding, (ii) the Clearing Agency or its nominee, as the
record holder of such Trust Securities, will receive a registered
global certificate or certificates representing the Debentures to
be delivered upon such distribution and (iii) any Trust Securities
Certificates not held by the Clearing Agency will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such
Holders, and bearing accrued and unpaid interest in an amount equal
to the accrued and unpaid Distributions on such Trust Securities
until such certificates are presented to the Property Trustee for
transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by
a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the
Property Trustee not to be practicable, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property
Trustee determines in good faith. In such event, on the date of the
dissolution, winding up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per
Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution").If, upon any such dissolution, winding-up or
termination, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common
Securities.
SECTION 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS, CONVERSIONS OR
REPLACEMENTS OF THE TRUST.
<PAGE> 66
The Trust may not merge with or into, consolidate, amalgamate, convert
into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person, except
pursuant to this Section 9.5. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the Property
Trustee, the Delaware Trustee or the Holders of the Preferred Securities, the
Trust may merge with or into, consolidate, amalgamate, convert into, be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity, possessing the same
powers and duties as the Property Trustee, as the holder of the Debentures,
(iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, conversion, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, conversion,
replacement, conveyance, transfer or lease the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder's interest in
the new entity), (b) following such merger, consolidation, amalgamation,
conversion, replacement, conveyance, transfer or lease neither the Trust nor
such successor entity will be required to register as an "investment company"
under the 1940 Act, and (c) following such merger, consolidation,
amalgamation, conversion or replacement, the Trust or such successor entity
will be treated as a grantor trust for United States federal income tax
purposes and (viii) the Depositor or any permitted successor or assignee owns
all of the Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in aggregate
Liquidation Amount of the Preferred Securities, consolidate, amalgamate,
convert into, merge with or into, be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, convert into, merge with
or into, or replace it if such consolidation, amalgamation, conversion,
<PAGE> 67
merger, replacement, conveyance, transfer or lease would cause the Trust or
the successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Declaration
of Trust, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
SECTION 10.2. AMENDMENT.
(a) This Declaration of Trust may be amended from time to time by the
Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Declaration of Trust, which
shall not be inconsistent with the other provisions of this
Declaration of Trust, (ii) to modify, eliminate or add to any
provisions of this Declaration of Trust to such extent as shall be
necessary to ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust at all times
that any Trust Securities are Outstanding or to ensure that the
Trust will not be required to register as an "investment company"
under the 1940 Act, or be classified as other than a grantor trust
for United States federal income tax purposes, or (iii) to maintain
the qualification of this Declaration of Trust under the Trust
Indenture Act; provided, however, that in the case of clause (i),
such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this
Declaration of Trust shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Declaration of Trust may be amended by the Trustees and the
Depositor with (i) the consent of Holders representing not less
than a majority (based upon Liquidation Amounts) of the Trust
Securities then Outstanding, acting as a single class, and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's
status as a grantor trust for United States federal income tax
purposes or the Trust's not being required to register as an
<PAGE> 68
"investment company" under the 1940 Act, provided, however, if any
amendment or proposal that would adversely affect the powers,
preferences or special rights of the Trust Securities, whether by
way of amendment or otherwise, would adversely affect only the
Preferred Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of a majority in Liquidation Amount of
such class of Trust Securities.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 6.3 or 6.6 hereof), this Declaration of Trust may not be
amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of
a Securityholder to institute suit for the enforcement of any such
payment on or after such date; notwithstanding any other provision
herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6
hereof), this paragraph (c) of this Section 10.2 may not be
amended.
(d) Notwithstanding any other provisions of this Declaration of Trust,
no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to be required
to register as an "investment company" under the 1940 Act, or to be
classified as other than a grantor trust for United States federal
income tax purposes or to reduce or otherwise adversely affect the
powers of the Property Trustee.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor, this Declaration of
Trust may not be amended in a manner which imposes any additional
obligation on the Depositor.
(f) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust
which affects its own rights, duties or immunities under this
Declaration of Trust.
(h) The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to
this Declaration of Trust is in compliance with this Declaration of
Trust.
<PAGE> 69
SECTION 10.3. SEPARABILITY.
In case any provision in this Declaration of Trust or in the Trust
Securities Certificates 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 10.4. GOVERNING LAW.
THIS DECLARATION OF TRUST AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT TO THIS DECLARATION OF
TRUST IN THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
which is not a Business Day, then such payment need not be made on such date
but may be made on the next succeeding day which is a Business Day (except as
otherwise provided in Section 4.1(a) and Section 4.2(d)), with the same force
and effect as though made on the date fixed for such payment, and no interest
shall accrue thereon for the period after such date.
SECTION 10.6. SUCCESSORS.
This Declaration of Trust shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Declaration of Trust.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communications which by any provision
of this Declaration of Trust is required or permitted to be given or served to
or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail,
hand delivery or facsimile transmission, in each case, addressed, (a) in the
case of a Holder of Preferred Securities, to such Holder as such Holder's name
and address may appear on the Securities Register; and (b) in the case of the
Holder of the Common Securities, to Louis Dreyfus Natural Gas Corp., 14000
Quail Springs Parkway, Oklahoma City, Oklahoma 73134, Attention: Secretary.
Any notice to Preferred Securityholders shall also be given to such
Owners as have, within two years preceding the giving of such notice, filed
<PAGE> 70
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given, or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Declaration of Trust is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (a) with respect to the Property Trustee,
to Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration,
(b) with respect to the Delaware Trustee, to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration, with a copy of any such notice to
the Property Trustee at its address above, and (c) with respect to the
Administrative Trustees, to them at the address for notices to the Depositor,
marked "Attention: Secretary." Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust or the Property Trustee.
SECTION 10.9. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article 9, it shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that, at the
expense of the Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor
against the Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action and should be
stopped and precluded therefrom and such other defenses, if any, as counsel
for the Trustee or the Trust may assert. The provisions of this Section 10.9
shall survive the termination of this Declaration of Trust.
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Declaration of Trust is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration of
Trust and shall, to the extent applicable, be governed by such
provisions.
(b) The Property Trustee shall be the only Trustee which is the trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
<PAGE> 71
provision hereof which is required to be included in this
Declaration of Trust by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any
provision of this Declaration of Trust modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this
Declaration of Trust as so modified or to be excluded, as the case
may be.
(d) The application of the Trust Indenture Act to this Declaration of
Trust shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the
assets of the Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF DECLARATION OF TRUST, GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS
THAT THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS TO THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
SECTION 10.12. COUNTERPARTS.
This Declaration of Trust may contain more than one counterpart of the
signature page and this Declaration of Trust may be executed by the affixing
of the signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of the signers had
signed a single signature page.
SECTION 10.13. PURCHASES OF TRUST SECURITIES.
Subject to applicable law (including, without limitation, United States
federal securities law), the Depositor or its subsidiaries or Affiliates may
at any time and from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
<PAGE> 72
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Declaration of Trust to be duly executed as of the day and year first
above written.
LOUIS DREYFUS NATURAL GAS CORP.,
as Depositor
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
---------------------------------------------
[name], as Administrative Trustee
---------------------------------------------
[name], as Administrative Trustee
<PAGE>
<PAGE> 73
EXHIBIT A
CERTIFICATE OF TRUST
OF
LOUIS DREYFUS NATURAL GAS TRUST [ ]
--
THIS Certificate of Trust of Louis Dreyfus Natural Gas Trust [ ] (the
--
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Jeffrey A. Bonney, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Louis Dreyfus
Natural Gas Trust [ ].
--
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
--------------------------------------------
Name: Jeffrey A. Bonney
<PAGE>
<PAGE> 74
EXHIBIT B
FORM OF CERTIFICATE DEPOSITARY AGREEMENT
<PAGE> 75
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
- ------------------- ---------------------------
Certificate Evidencing Common Securities
of
Louis Dreyfus Natural Gas Trust [ ]
--
Common Securities
(liquidation amount $[ ] per Common Security)
--------
Louis Dreyfus Natural Gas Trust [ ], a statutory business trust formed
--
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Louis Dreyfus Natural Gas Corp. (the "Holder") is the registered owner of
[ ] common securities of the Trust representing undivided beneficial
----------
interests in the assets of the Trust (the "Common Securities"). In accordance
with Section 5.10 of the Declaration of Trust (as defined below) the Common
Securities are not transferable and any attempted transfer hereof shall be
void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust dated as of [ , ], as
------ -- ----
the same may be amended from time to time (the "Declaration of Trust")
including the designation of the terms of the Common Securities as set forth
therein. The Holder is entitled to the benefits of the Common Securities
Guarantee Agreement entered into by the Holder and Wilmington Trust Company,
as Guarantee Trustee, dated as of [ , ], (the "Guarantee"),
------ -- ----
to the extent provided therein. The Trust will furnish a copy of the
Declaration of Trust and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Declaration
of Trust and is entitled to the benefits thereunder.
<PAGE> 76
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of [ , ].
--- ------ -- ----
LOUIS DREYFUS NATURAL GAS TRUST [ ]
--
By:
-----------------------------------------
Name:
---------------------------------------
As Administrative Trustee
<PAGE> 77
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Declaration of Trust.
Dated: [ , ].
------ -- ----
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-----------------------------------------
Authorized Signatory
<PAGE> 78
EXHIBIT D
THIS PREFERRED SECURITY IS A BOOK- ENTRY PREFERRED SECURITIES CERTIFICATE
WITHIN THE MEANING OF THE DECLARATION OF TRUST HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF
DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST AND NO TRANSFER OF
THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (55 WATER STREET, NEW YORK), TO LOUIS DREYFUS NATURAL
GAS TRUST [ ] OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
--
AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 79
Certificate Number Number of Preferred Securities
- ------------------ ------------------------------
CUSIP No.
----------
$
--------------
Certificate Evidencing Preferred Securities
of
Louis Dreyfus Natural Gas Trust [ ]
--
[ ]% [Convertible] Preferred Securities
--
(liquidation amount $[ ] per Preferred Security)
---------
Louis Dreyfus Natural Gas Trust [ ], a statutory business trust formed
--
under the laws of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of preferred securities of the
-------
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the Louis Dreyfus Natural Gas Trust [ ] [ ]% [Convertible]
-- --
Preferred Securities (liquidation amount $[ ] per Preferred Security)
---------
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in Section 5.4 of the Declaration of Trust (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of [ ,
------ --
], as the same may be amended from time to time (the "Declaration of
- ----
Trust") including the designation of the terms of Preferred Securities as set
forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Louis Dreyfus Natural Gas Corp., an Oklahoma
corporation, and Wilmington Trust Company, as Guarantee Trustee, dated as of
[ , ], (the "Guarantee"), to the extent provided therein. The
------ -- ----
Trust will furnish a copy of the Declaration of Trust and the Guarantee to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office. Upon receipt of this certificate, the Holder
is bound by the Declaration of Trust and is entitled to the benefits
<PAGE> 80
thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of [ , ].
--- -------- ----
LOUIS DREYFUS NATURAL GAS TRUST [ ]
--
By:
-----------------------------------------
Name:
---------------------------------------
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration of Trust.
Dated: [ , ].
------ -- ----
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-----------------------------------------
<PAGE> 81
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
---------------------------
Signature:
----------------------
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee:
------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Securities Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Securities Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE> 82
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial liquidation amount of this Global Certificate shall be
$ . The following increases or decreases in the liquidation amount of
----------
this Global Certificate have been made:
<TABLE>
<C> <C> <C> <C>
<C>
Amount of increase in Liquidation
Signature of
Liquidation Amount of this Amount of decrease Amount of this
authorized officer
Global Certificate in Liquidation Global Certificate
of Trustee or
including upon exercise of Amount of this following such
Securities
Date Made over allotment option Global Certificate decrease or increase
Custodian
</TABLE>
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<PAGE> 83
[EXHIBIT E
NOTICE OF CONVERSION
To: Wilmington Trust Company,
as Property Trustee of
Louis Dreyfus Natural Gas Trust [ ]
--
The undersigned owner of these Trust Securities hereby irrevocably
exercises the option to convert these Trust Securities, or the portion below
designated, into Common Stock of LOUIS DREYFUS NATURAL GAS CORP. (the "Company
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Declaration of Trust"), dated as [ , ],
------ -- ----
by [ ] and [ ], as Administrative
--------------------- -----------------------
Trustees, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust
Company, as Property Trustee, Louis Dreyfus Natural Gas Corp., as Depositor,
and by the Holders, from time to time, of individual beneficial interests in
the Trust to be issued pursuant to the Declaration of Trust. Pursuant to the
aforementioned exercise of the option to convert these Trust Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in
the Declaration of Trust) to (i) exchange such Trust Securities for a portion
of the Debentures (as that term is defined in the Declaration of Trust) held
by the Trust (at the rate of exchange specified in the terms of the Trust
Securities set forth in the Declaration of Trust) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Company Common Stock (at
the conversion rate specified in the terms of the Trust Securities set forth
in the Declaration of Trust).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Date:
----------------------
in whole in part
----- -----
Number and type of Trust Securities to be
converted:
---------------
If a name or names other than the undersigned,
please indicate in the spaces below the name or
names in which the shares of Company Common
Stock are to be issued, along with the address
<PAGE> 84
or addresses of such person or persons
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
Signature (for conversion only) *
--------------------------------------------
--------------------------------------------
Typewrite Name and Address, Including Zip
Code, and Social Security or Other Identifying
Number
--------------------------------------------
--------------------------------------------
--------------------------------------------
Signature Guarantee:
------------------------
- ------------------
*(Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in
such other guarantee programs acceptable to the Trustee.)]
<PAGE> 1
EXHIBIT 4.20
GUARANTEE AGREEMENT
BETWEEN
LOUIS DREYFUS NATURAL GAS CORP., as Guarantor
AND
WILMINGTON TRUST COMPANY, as Guarantee Trustee
RELATING TO THE PREFERRED SECURITIES OF LOUIS DREYFUS NATURAL GAS TRUST [ ]
--
Dated as of [ , ]
------ -- ----
<PAGE> 2
CROSS REFERENCE TABLE*
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
- ---------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c), 2.8
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.5, 3.2
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.6, 5.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
- -------------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2 TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . 6
Section 2.0. Trust Indenture Act; Application . . . . . . . . . 6
Section 2.1. List of Holders. . . . . . . . . . . . . . . . . . 6
Section 2.2. Reports by the Guarantee Trustee . . . . . . . . . 7
Section 2.3. Periodic Reports to Guarantee Trustee. . . . . . . 7
Section 2.4. Evidence of Compliance with Conditions Precedent . 7
Section 2.5. Events of Default; Waiver. . . . . . . . . . . . . 7
Section 2.6. Event of Default; Notice . . . . . . . . . . . . . 8
Section 2.7. Conflicting Interests. . . . . . . . . . . . . . . 8
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE . . . . 8
Section 3.1. Powers and Duties of the Guarantee Trustee . . . . 8
Section 3.2. Certain Rights of Guarantee Trustee. . . . . . . 10
Section 3.3. Indemnity. . . . . . . . . . . . . . . . . . . . 12
ARTICLE 4 GUARANTEE TRUSTEE. . . . . . . . . . . . . . . . . . . . 12
Section 4.1. Guarantee Trustee; Eligibility . . . . . . . . . 12
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee. . . . . . . . . . . . . . . . 13
ARTICLE 5 GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.1. Guarantee. . . . . . . . . . . . . . . . . . . . 13
Section 5.2. Waiver of Notice and Demand. . . . . . . . . . . 13
Section 5.3. Obligations Not Affected . . . . . . . . . . . . 14
Section 5.4. Rights of Holders. . . . . . . . . . . . . . . . 14
Section 5.5. Guarantee of Payment . . . . . . . . . . . . . . 15
Section 5.6. Subrogation. . . . . . . . . . . . . . . . . . . 15
Section 5.7. Independent Obligations. . . . . . . . . . . . . 15
ARTICLE 6 COVENANTS; SUBORDINATION . . . . . . . . . . . . . . . . 15
Section 6.1. Certain Covenants of the Guarantor. . . . . . . 15
Section 6.2. Subordination . . . . . . . . . . . . . . . . . 17
ARTICLE 7 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . 17
Section 7.1. Termination. . . . . . . . . . . . . . . . . . . 17
ARTICLE 8 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 17
Section 8.1. Successors and Assigns . . . . . . . . . . . . . 17
Section 8.2. Amendments . . . . . . . . . . . . . . . . . . . 18
Section 8.3. Notices. . . . . . . . . . . . . . . . . . . . . 18
Section 8.4. Benefit. . . . . . . . . . . . . . . . . . . . . 19
Section 8.5. Interpretation . . . . . . . . . . . . . . . . . 19
Section 8.6. Governing Law. . . . . . . . . . . . . . . . . . 19
<PAGE> 4
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of [ , ],, is executed and
------ -- ----
delivered by Louis Dreyfus Natural Gas Corp., an Oklahoma corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Louis Dreyfus Natural Gas Trust [ ], a Delaware statutory business trust (the
--
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of [ , ], among the Trustees
------ -- ----
named therein, the Guarantor, as Depositor, and the Holders from time to time
of undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing [ ] of its [ ]% Preferred Securities (liquidation
------------- ---
preference $[ ] per preferred security) (the "Preferred Securities")
----------
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Declaration of Trust) of the Guarantor which will be
deposited with Wilmington Trust Company, as Property Trustee under the
Declaration of Trust, as trust assets;
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement
for the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Declaration of Trust as
in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct common control with
such specified Person, provided, however, that an Affiliate of the Guarantor
shall not be deemed to include the Issuer. 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
<PAGE> 5
correlative to the foregoing.
"Common Securities" means the securities representing common beneficial
interests in the assets of the Issuer.
"Common Stock" shall mean the common stock, par value $.01 per share, of
the Guarantor.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, no
Event of Default shall be deemed to have occurred under this Guarantee
Agreement unless and until the Guarantor shall have received written notice of
default and shall not have cured such default within 60 days after receipt of
such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent
not paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration of Trust) required to be paid on
the Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price set forth in the
Declaration of Trust, including premium, if any, all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Preferred Securities called for redemption by the Issuer to the extent
the Issuer shall have funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $[ ] per Preferred Security
---------
plus accrued and unpaid Distributions on the Preferred Securities to the date
of payment to the extent the Issuer shall have funds on hand available to make
such payment and (b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Indenture dated as of [ , ], between
------- -- ----
the Guarantor and [ ], as trustee, as the same may be
-----------------------
supplemented and amended from time to time.
"List of Holders" has the meaning specified in Section 2.2 (a).
"Majority in Liquidation Preference of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
the outstanding Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
<PAGE> 6
signed by (i) the Chairman, Chief Executive Officer, President or a Vice
President, and by (ii) the Treasurer, an Assistant Treasurer, the Controller,
the Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Executive Vice President, Senior Vice President, any First Vice President, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer of the Corporate Trust Services
Division of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers, in each case with
direct responsibility for administration of this Guarantee Agreement, and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.0. TRUST INDENTURE ACT; APPLICATION
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
<PAGE> 7
SECTION 2.1. LIST OF HOLDERS
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (unless the Guarantee Trustee is acting as
Securities Registrar with respect to the Debentures under the
Indenture) (i) semi-annually, on or before [ ] and
----------
[ ] of each year, a list, in such form as the Guarantee
-------
Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior
to the delivery thereof, and (ii) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as
of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a
previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee. Notwithstanding the foregoing,
the Guarantor shall not be obligated to provide such List of Holders
at any time the Preferred Securities are represented by one or more
Global Certificates (as defined in the Indenture). The Guarantee
Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.2. REPORTS BY THE GUARANTEE TRUSTEE
Within 60 days after May 15 of each calendar year, the Guarantee Trustee
shall provide to the Holders such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.3. PERIODIC REPORTS TO GUARANTEE TRUSTEE
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.4. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.5. EVENTS OF DEFAULT; WAIVER
The Holders of a Majority in Liquidation Preference of the Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
<PAGE> 8
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.6. EVENT OF DEFAULT; NOTICE
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid,
to the Holders, notices of all Events of Default known to the
Guarantee Trustee, unless such defaults have been cured before the
giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Declaration of Trust shall have obtained
written notice, of such Event of Default.
SECTION 2.7. CONFLICTING INTERESTS
The Declaration of Trust and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed
and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default actually known to the Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6) and is
<PAGE> 9
actually known to the Responsible Officer of the Guarantee Trustee,
the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that
may have occurred;
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the
express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in
this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof or of the Trust Indenture Act are
specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine
whether or not they conform to the requirements
of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of
not less than a Majority in Liquidation Preference of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment
<PAGE> 10
of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed, sent or presented by
the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith
on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or opinion of such legal counsel with respect
to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this
Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement and
use the same degree of care and skill in the exercise
<PAGE> 11
thereof as a prudent person would exercise or use under
the circumstances in the conduct of his or her own
affairs.
(vi) The Guarantee 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 Guarantee Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys or any
Affiliate, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by
it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee
Trustee (A) may request instructions from the Holders of
a Majority in Liquidation Preference of the Securities,
(B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such
act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.3. INDEMNITY
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of
or in connection with the acceptance or administration of this Guarantee
Agreement, including the reasonable 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. The Guarantee Trustee will not claim
or exact any lien or charge on any Guarantee Payment as a result of any amount
due to it under this Guarantee Agreement.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY
(a) There shall at all times be a Guarantee Trustee which shall:
<PAGE> 12
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of
the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act. The Declaration of Trust and the Indenture shall not
be deemed to constitute conflicting interests of the Guarantee
Trustee.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE
(a) Subject to Section 4.2(b) the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1. GUARANTEE
<PAGE> 13
The Guarantor irrevocably and unconditionally agrees, subject to Section
6.2, to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer
may have or assert other than the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any
interest payment period on the Debentures as may be provided under
the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or
the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
<PAGE> 14
There shall be no obligation of the Holders or the Guarantee Trustee to
give notice to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
<PAGE> 15
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Preference of the Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; (iv) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee,
the Issuer or any other Person; and (v) if an Event of Default with respect to
the Debentures constituting the failure to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable has
occurred and is continuing, then any Holder shall have the right, which is
absolute and unconditional, to proceed directly against the Guarantor to
obtain Guarantee Payments without first waiting to determine if the Guarantee
Trustee has enforced this Guarantee Agreement or instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided
in the Declaration of Trust.
SECTION 5.6. SUBROGATION
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
<PAGE> 15
ARTICLE 6
COVENANTS; SUBORDINATION
SECTION 6.1. CERTAIN COVENANTS OF THE GUARANTOR
(a) Guarantor covenants and agrees that if and so long as (i) the Issuer
is the holder of all the Debentures, (ii) a Tax Event (as defined in
the Declaration of Trust) in respect of the Issuer has occurred and
is continuing and (iii) the Guarantor has elected, and has not
revoked such election, to pay Additional Sums (as defined in the
Declaration of Trust) in respect of the Preferred Securities and
Common Securities, the Guarantor will pay to the Issuer such
Additional Sums.
(b) So long as any Preferred Securities remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem,
purchase, acquire or make a distribution or liquidation payment with
respect to, any of its capital stock (other than (a) dividends or
distributions in shares of, or options, warrants, rights to
subscribe for or purchase shares of, common stock of the Guarantor,
(b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) as a result of a
reclassification of the Guarantor's capital stock or the exchange or
the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock,
(d) the payment of accrued dividends and the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, or (e) purchases of the
Guarantor's common stock related to the issuance of the Guarantor's
common stock or rights under any of the Guarantor's benefit plans
for its directors, officers or employees, any dividend reinvestment
plans or stock purchase plans of the Guarantor, or any of the
benefit plans of any of the Guarantor's Affiliates, for such
Affiliate's directors, officers or employees) or make any guarantee
payment with respect thereto, if at such time (i) the Guarantor
be in default with respect to its Guarantee Payments or other
payment obligations hereunder, (ii) there shall have occurred any
event of which the Guarantor has actual knowledge that (A) with the
giving of notice or lapse of time, or both, would constitute an
"Event of Default" under the Indenture with respect to the
Debentures and (B) in respect of which the Guarantor shall not have
taken reasonable steps to cure or (iii) the Guarantor shall have
given notice of its election of an extension period (as provided in
the Indenture) and such period, or any extension thereof, is
continuing.
(c) The Guarantor covenants and agrees (i) to maintain directly or
indirectly 100% ownership of the Common Securities, provided that
certain successors which are permitted by the Indenture may succeed
to the Guarantor's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate the Issuer, except (a)
in connection with a distribution of the Debentures to the holders
of the Preferred Securities in liquidation of the Issuer or (b) in
connection with certain mergers, consolidations or amalgamations
permitted by the Declaration of Trust, (iii) to use its reasonable
efforts, consistent with the terms and provisions of the Declaration
of Trust, to cause the Issuer to remain classified as a grantor
trust for United States Federal income tax purposes, [(iv) for so
<PAGE> 16
long as Preferred Securities are outstanding, not to convert
Debentures except pursuant to a notice of conversion delivered to
the Conversion Agent (as defined in the Declaration of Trust) by a
Holder, (v) to maintain the reservation for issuance of the number
of shares of Common Stock that would be required from time to time
upon the conversion of all the Debentures then outstanding, (vi) to
deliver shares of Common Stock upon an election by the Holders to
convert such Preferred Securities into Common Stock] and (vii) to
honor all obligations relating to [the conversion] or exchange of
the Preferred Securities into or for [Common Stock or] Debentures.
SECTION 6.2. SUBORDINATION
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, including the Debentures, except those
made pari passu or subordinate by their terms, and (ii) senior to all capital
stock (other than the most senior preferred stock issued, from time to time,
if any, by the Guarantor, which preferred stock will rank pari passu with this
Guarantee Agreement) now or hereafter issued by the Guarantor and to any
guarantee now or hereafter entered into by the Guarantor in respect of any of
its capital stock (other than the most senior preferred stock issued, from
time to time, if any, by the Guarantor). The Guarantor's obligations under
this Guarantee Agreement will rank pari passu with respect to obligations
under other guarantee agreements which it may enter into from time to time to
the extent that (i) such agreements shall be entered into in substantially the
form hereof and provide for comparable guarantees by the Guarantor of payment
on preferred securities issued by other trusts, partnerships or other entities
affiliated with the Guarantor that are financing vehicles of the Guarantor and
(ii) the debentures or other evidences of indebtedness of the Guarantor
relating to such preferred securities are junior subordinated, unsecured
indebtedness of the Guarantor.
ARTICLE 7
TERMINATION
SECTION 7.1. TERMINATION
This Guarantee Agreement shall terminate and be of no further force and
effect upon the earliest of (i) full payment of the Redemption Price of all
Preferred Securities, (ii) the distribution of Debentures to the Holders in
exchange for all of the Preferred Securities, (iii) full payment of the
amounts payable in accordance with the Declaration of Trust upon liquidation
of the Issuer [or (iv) the distribution, if any, of Common Stock to the
holders of the Preferred Securities in respect of the conversion of all such
holders' Preferred Securities into Common Stock]. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to Preferred Securities or this Guarantee
Agreement.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1. SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
<PAGE> 17
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2. AMENDMENTS
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than a Majority in Liquidation
Preference of the Securities. The provisions of Article 6 of the Declaration
of Trust concerning meetings of the Holders shall apply to the giving of such
approval. The Guarantor shall furnish the Guarantee Trustee with an Officers'
Certificate and an Opinion of Counsel to the effect that any amendment of this
Agreement is authorized and permitted.
SECTION 8.3. NOTICES
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Louis Dreyfus Natural Gas Corp.
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
Phone No.: (405) 749-5202
Facsimile No.: (405) 748-2789
Attention: Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or
such other address as the Guarantee Trustee on behalf of the Issuer
may give notice of to the Holders:
Louis Dreyfus Natural Gas Trust [ ]
--
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
Phone No.: (405) 749-5202
Facsimile No.: (405) 748-2789
Attention: Secretary
with a copy to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Phone No.: [ ]
-------------
Facsimile No.: [ ]
--------------
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
<PAGE> 18
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. BENEFIT
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5. INTERPRETATION
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them
in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. GOVERNING LAW
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
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.
<PAGE> 19
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
LOUIS DREYFUS NATURAL GAS CORP.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
WILMINGTON TRUST COMPANY
as Guarantee Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
<PAGE> 1
EXHIBIT 5.1
[Crowe & Dunlevy letterhead]
May 24, 1999
Louis Dreyfus Natural Gas Corp.
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
Ladies and Gentlemen:
We have acted as counsel to Louis Dreyfus Natural Gas Corp., an Oklahoma
corporation (the "Company"), Louis Dreyfus Natural Gas Trust I and Louis
Dreyfus Natural Gas Trust II, each a Delaware business trust (collectively,
the "Trusts"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), pursuant to a registration statement on Form S-3
(the "Registration Statement") of such indeterminate number or amount of (i)
shares of Common Stock, par value $.01 per share, of the Company (the "Common
Stock"); (ii) shares of Preferred Stock, $.01 par value per share, of the
Company (the "Preferred Stock"); (iii) debt securities of the Company (the
"Debt Securities"); (iv) Preferred Securities of the Trusts (the "Preferred
Securities"); (v) the guarantees by the Company (the "Guarantees") of any
Preferred Securities issued by each of the Trusts pursuant to a Guarantee
Agreement to be executed by the Company in substantially the form attached as
an exhibit to the Registration Statement (the "Guarantee Agreement"); and (vi)
shares of Common Stock and Preferred Stock as may be issued upon conversion of
or exchange for any Debt Securities, Preferred Stock or Preferred Securities
that provide for conversion or exchange into other securities (the "Additional
Shares") (the Common Stock, Preferred Stock, Debt Securities, Guarantees,
Preferred Securities and Additional Shares are herein collectively referred to
as the "Offered Securities"). Capitalized terms used but not defined herein
have the respective meanings ascribed to them in the Registration Statement.
We have, as counsel, examined such corporate records, certificates of
public officials and officers of the Company and other documents and reviewed
such questions of law as we have deemed necessary or appropriate to enable us
to render the opinions expressed below. In rendering such opinions, we have
assumed the genuineness of all signatures and the authenticity of all
documents examined by us and the legal capacity of natural persons who are
parties to the documents examined by us. As to various questions of fact
material to such opinions, we have relied upon representations of the Company.
In connection with the opinions expressed below, we have further assumed
that (i) the Board of Directors of the Company or, to the extent permitted by
the General Corporation Act of the State of Oklahoma, a duly constituted and
acting committee thereof (such Board of Directors or committee being referred
to herein as the "Board") will have duly established the terms of the
applicable Offered Securities and duly authorized the issuance and sale of
such Offered Securities and such authorization will not have been modified or
rescinded; (ii) the Registration Statement, and any amendments thereto
(including post-effective amendments), will have become effective under the
Act and will not have been terminated or rescinded; (iii) a prospectus
supplement as contemplated by the Registration Statement will have been
prepared and filed with the Securities and Exchange Commission describing the
Offered Securities offered thereby; (iv) all Offered Securities will be issued
and sold in compliance with applicable federal and state securities laws and
in the manner stated in the Registration Statement and the appropriate
prospectus supplement; (v) there will not have occurred any change in the law
affecting the validity or enforceability of the Offered Securities; and (vi) a
<PAGE> 2
definitive purchase, underwriting, sales agency or similar agreement with
respect to the Offered Securities will have been duly authorized and validly
executed and delivered by the Company and/or the Trusts and the other parties
thereto.
Based upon the foregoing, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
<PAGE> 3
Louis Dreyfus Natural Gas Corp.
May 24, 1999
Page 2
1. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Common Stock and (ii) the Common Stock
has been duly issued and sold as contemplated by the Registration Statement
and any prospectus supplement, such shares of Common Stock (including any
Common Stock duly issued upon the conversion or exchange of any Offered
Securities convertible or exchangeable into Common Stock) will be validly
issued, fully paid and nonassessable.
2. When (i) a Certificate of Designation with respect to the Preferred
Stock of a particular series has been duly filed with the Secretary of State
of the State of Oklahoma; (ii) the terms of the Preferred Stock of such series
and of its issuance and sale have been duly established in conformity with the
Company's Certificate of Incorporation so as not to violate any applicable law
or result in a default or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company; and (iii)
the Preferred Stock of such series has been duly issued and sold as
contemplated by the Registration Statement and any prospectus supplement, the
Preferred Stock of such series (including any Preferred Stock duly issued upon
the conversion or exchange of any Offered Securities convertible or
exchangeable into Preferred Stock) will be validly issued, fully paid and
nonassessable.
3. When (i) the terms of the Debt Securities and of their issuance and
sale have been duly established in conformity with the applicable Indenture in
substantially the form attached as an exhibit to the Registration Statement so
as not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; and (ii) the Debt Securities have been
duly executed and authenticated in accordance with the applicable Indenture
and issued and sold as contemplated in the Registration Statement and
anyprospectus supplement, the Debt Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
enforcement of creditor's rights generally and (b) equitable principles of
general applicability, regardless of whether considered in a proceeding at law
or in equity.
4. When (i) the applicable Guarantee Agreement has been validly
executed and delivered by the parties thereto and (ii) the Preferred
Securities of the Trusts have been duly issued and delivered by the applicable
Trust as contemplated by the Registration Statement and any prospectus
supplement, the Guarantees will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
as the enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditor's
rights generally and (b) equitable principles of general applicability,
regardless of whether considered in a proceeding at law or in equity.
The legality of the Preferred Securities to be issued by the Trusts will
be passed upon by Richards, Layton & Finger, special Delaware counsel to the
Trusts and the Company.
<PAGE> 4
This opinion is rendered solely to you in connection with the matters
described herein. This opinion may not be used or relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except as set forth below.
<PAGE> 5
Louis Dreyfus Natural Gas Corp.
May 24, 1999
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the heading
"Validity of Offered Securities" in the prospectus included in the
Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ CROWE & DUNLEVY, A PROFESSIONAL CORPORATION
<PAGE> 1
EXHIBIT 5.2
[Richards, Layton & Finger letterhead]
May 21, 1999
Louis Dreyfus Natural Gas Corp.
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
Re: Louis Dreyfus Natural Gas Trust I-II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Louis Dreyfus Natural Gas
Corp., an Oklahoma corporation (the "Company"), Louis Dreyfus Natural Gas
Trust I, a Delaware business trust ("Trust I"), and Louis Dreyfus Natural Gas
Trust II, a Delaware business trust ("Trust II") (Trust I and Trust II are
hereinafter collectively referred to as the "Trusts" and sometimes hereinafter
individually referred to as a "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
May 21, 1999;
(b) The Certificate of Trust of Trust II, as filed with the Secretary of
State on May 21,1999;
(c) The Declaration of Trust of Trust I, dated as of May 20, 1999, among
the Company and the trustees named therein;
(d) The Declaration of Trust of Trust II, dated as of May 20, 1999,
among the Company and the trustees named therein;
<PAGE> 2
Louis Dreyfus Natural Gas Corp.
May 21, 1999
Page 2
(e) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus") relating to the
Preferred Securities of the Trusts representing preferred undivided beneficial
interests in the assets of the Trusts (each a "Preferred Security" and,
collectively, the "Preferred Securities"), filed by the Company and the Trusts
with the Securities and Exchange Commission;
(f) A form of Amended and Restated Declaration of Trust for each of the
Trusts, to be entered into between the Company, the trustees of the Trust
named therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (collectively, the "Declaration of
Trusts" and, individually, a "Declaration of Trust"), attached as an exhibit
to the Registration Statement; and
(g) A Certificate of Good Standing for each of the Trusts, dated
May 21, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration of Trusts.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (g) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (g) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declaration of Trusts will constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including with respect to
the creation, operation and termination of the applicable Trust, and that the
Declaration of Trusts and the Certificates of Trust will be in full force and
effect and will not be amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation, as the case may be,
and valid existence in good standing of each party to the documents examined
by us under the laws of the jurisdiction governing its organization or
formation, (iii) the
<PAGE> 3
Louis Dreyfus Natural Gas Corp.
May 21, 1999
Page 3
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by
all parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Preferred Security is to be issued by the Trusts
(collectively, the "Preferred Security Holders") of a Preferred Security
Certificate for such Preferred Security and the payment for such Preferred
Security, in accordance with the Declaration of Trusts and the Registration
Statement, and (vii) that the Preferred Securities are authenticated, issued
and sold to the Preferred Security Holders in accordance with the Declaration
of Trusts and the Registration Statement. We have not participated in the
preparation of the Registration Statement or the Prospectus and assume no
responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered
only with respect to Delaware laws and rules, regulations and orders
thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. We note
that the Preferred Security Holders may be obligated to make payments as set
forth in the Declaration of Trust.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to
the use of our name under the heading "Validity of Offered Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section
<PAGE> 4
Louis Dreyfus Natural Gas Corp.
May 21, 1999
Page 4
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EAM/dwh
<PAGE> 1
EXHIBIT 12.1
LOUIS DREYFUS NATURAL GAS CORP.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
For purposes of these computations, earnings consist of income before
income taxes and fixed charges excluding capitalized interest. Fixed charges
consist of interest expense, including amortization of debt discount and
financing costs, capitalized interest, and the portion of rental expense which
LDNG believes is representative of the interest component of rental expense.
<TABLE>
<CAPTION>
Three
Months
Years Ended December 31, Ended
------------------------------------------------ March 31,
1994 1995 1996 1997 1998 1999
-------- -------- -------- -------- -------- ---------
(dollars in thousands, except ratio data)
<S> <C> <C> <C> <C> <C> <C>
EARNINGS:
Net income (loss) be-
fore income taxes . . $ 16,038 $ 15,739 $ 31,500 $(27,323) $(73,156) $ (5,977)
Interest. . . . . . . . 16,856 21,736 26,822 28,737 40,908 10,048
Amortization of debt
issue costs . . . . . 894 1,111 1,073 847 588 148
Interest portion of
rental expense. . . . 293 291 307 375 692 124
-------- -------- -------- -------- -------- ---------
$ 34,081 $ 38,877 $ 59,702 $ 2,636 $(30,968) $ 4,343
======== ======== ======== ======== ======== =========
FIXED CHARGES:
Interest. . . . . . . . $ 16,856 $ 21,736 $ 26,822 $ 28,737 $ 40,908 $ 10,048
Capitalized interest. . -- 266 431 998 3,272 554
Amortization of debt
issue costs . . . . . 894 1,111 1,073 847 588 148
Interest portion of
rental expense. . . . 293 291 307 375 692 124
-------- -------- -------- -------- -------- ---------
$ 18,043 $ 23,404 $ 28,633 $ 30,957 $ 45,460 $ 10,874
======== ======== ======== ======== ======== =========
Ratio of earnings to
combined fixed
charges (1) . . . . . 1.9:1 1.7:1 2.1:1 NM NM NM
======== ======== ======== ======== ======== =========
<FN>
(1) Earnings were insufficient to cover fixed charges by $28.3 million and
$76.4 million for the years ended December 31, 1997 and 1998, respectively,
and $6.5 million for the three months ended March 31, 1999.
</TABLE>
<PAGE> 1
EXHIBIT 23.3
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 3 to the Registration Statement (Form S-3 No. 333-21321) and
related Prospectus of Louis Dreyfus Natural Gas Corp. for the registration of
$400,000,000 of its securities (as defined in the Registration Statement)
and to the incorporation by reference therein of our report dated February 4,
1999, with respect to the consolidated financial statements and schedule of
Louis Dreyfus Natural Gas Corp. included in its Annual Report on Form 10-K for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
---------------------
ERNST & YOUNG LLP
Oklahoma City, Oklahoma
May 21, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the reference in the Registration Statement on Form
S-3 of Louis Dreyfus Natural Gas Corp. and the related Prospectus to our
report dated February 16, 1999 relating to our review of the oil and gas
reserves of Louis Dreyfus Natural Gas Corp. as of December 31, 1998. We also
consent to all references to our firm included in or made a part of such
Registration Statement and Prospectus.
/s/ RYDER SCOTT COMPANY
-----------------------
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Houston, Texas
May 19, 1999
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Jeffrey A. Bonney, Kevin R. White and Mark E. Monroe, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign the registration statement on Form S-3 under
the Securities Act of 1933 of Louis Dreyfus Natural Gas Corp. and any and all
amendments thereto (including post-effective amendments), and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Mark E. Monroe President, Chief Executive May 6,1999
- ------------------ Officer and Director
Mark E. Monroe (principal executive officer)
/s/ Richard E. Bross Executive Vice President May 6,1999
- -------------------- and Director
Richard E. Bross
/s/ Jeffrey A. Bonney Executive Vice President May 5,1999
- --------------------- and Chief Financial Officer
Jeffrey A. Bonney (principal financial and
accounting officer)
/s/ Simon B. Rich, Jr. Chairman of the Board May 6,1999
- ----------------------- of Directors
Simon B. Rich, Jr.
/s/ Mark Andrews Vice Chairman of the Board May 6,1999
- ---------------- of Directors
Mark Andrews
/s/ E. William Barnett Director May 6,1999
- ----------------------
E. William Barnett
/s/ Daniel R. Finn, Jr. Director May 7,1999
- -----------------------
Daniel R. Finn, Jr.
<PAGE> 2
/s/ Peter G. Gerry Director May 6,1999
- ------------------
Peter G. Gerry
/s/ Gerard Louis-Dreyfus Director May 6,1999
- ------------------------
Gerard Louis-Dreyfus
/s/ John H. Moore Director May 6,1999
- -----------------
John H. Moore
/s/ James R. Paul Director May 6,1999
- -----------------
James R. Paul
/s/ Ernest F. Steiner Director May 10,1999
- ---------------------
Ernest F. Steiner
<PAGE> 1
Exhibit 25.3
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Junior Subordinated Debentures
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 21st
day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
<PAGE> 3
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
------------------------ ----------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE> 4
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 5
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate and
property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws
not inconsistent with the Constitution or laws of the
<PAGE> 6
United States or of this State, to discount bills, notes
or other evidences of debt, to receive deposits of money,
or securities for money, to buy gold and silver bullion
and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a
corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and
disposal of property of all descriptions, and to prepare
and execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
<PAGE> 7
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with
any other person, or persons, corporation, or
corporations, or in like manner become surety upon any
bond, recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity in the receiving,
holding, managing, and disposing of any and all estates
and property, real, personal or mixed, and to be appointed
as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or
elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be
required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of
the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
<PAGE> 8
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property, any and all the rights, powers and
privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with any
of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from
time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate
business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real and personal property of
any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property
so purchased; to conduct in any lawful manner the whole or
any part of any business so acquired, and to exercise all
the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
<PAGE> 9
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or
any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects,
purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
<PAGE> 10
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the
same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of
any series of the same or any other class or classes of
stock of the Corporation and the terms and conditions of
such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may be
redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed
<PAGE> 11
in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article FOURTH), to be
distributed to the holders of Preferred Stock in the
event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to receive all of the remaining
assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock
shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of
any increase of the authorized capital stock of the Corporation of
any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable
for stock of the Corporation of any class or series, or carrying
any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any
class or series of stock or securities convertible into or
exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board
of Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its
sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
<PAGE> 12
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
<PAGE> 13
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned by
each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
<PAGE> 14
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections(b) and
(c) of this Article FIFTEENTH:
<PAGE> 15
(A) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with or
into (i) any Interested Stockholder (as hereinafter
defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after
such merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or
a series of related transactions) to or with any
Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
related transactions) of any securities of the
Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of
any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or
any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A)through (E)
<PAGE> 16
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as
is required by law and any other provisions of the Charter or Act
of Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm,
corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of
any business combination, any person (other than the
Corporation or any Subsidiary) who or which as of the
record date for the determination of stockholders entitled
to notice of and to vote on such business combination, or
immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any
time within two years prior thereto was the
beneficial owner, directly or indirectly, of not less
than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in
any share of capital stock of the Corporation which
were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and
such assignment or succession shall have occurred in
the course of a transaction or series of transactions
not involving a public offering within the meaning of
the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any
Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote
<PAGE> 17
pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of
the Corporation.
(4) The outstanding Voting Shares shall include shares
deemed owned through application of paragraph (3) above
but shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in
Rule 3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of
the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary"
shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly,
by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities
by the Corporation, or any Subsidiary has an aggregate fair market
value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
<PAGE> 18
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
<PAGE> 19
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
<PAGE> 20
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
<PAGE> 21
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 22
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the
Company by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
<PAGE> 23
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
<PAGE> 24
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
<PAGE> 25
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
<PAGE> 26
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be canceled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
<PAGE> 27
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
<PAGE> 28
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
<PAGE> 29
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/ James P. Lawler
---------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 30
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------------------------- ---------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
-------------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . $ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . $ 4,167,235
LESS: Allowance for loan and lease losses. . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . 0
----------
Loans and leases, net of unearned income, allowance, and reserve 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated
companies . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,052
Customers' liability to this bank on acceptances outstanding . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 6,044,359
-----------
-----------
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 31
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . $ 4,474,659
Noninterest-bearing . . . . . . . .$ 1,037,549
Interest-bearing. . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . 90,951
-----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
-----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,863
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 471,745
-----------
Total liabilities, limited-life preferred stock, and equity
capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 6,044,359
-----------
-----------
</TABLE>
<PAGE> 1
EXHIBIT 25.4
Registration No. 33-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
LOUIS DREYFUS NATURAL GAS TRUST I
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Trust I Preferred Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 21st
day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
----------------------- -------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
Amendment Filed in the Office of the Secretary of State on March 18, A.d.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the
world,viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for money, to
buy gold and silver bullion and foreign coins, to buy and sell bills
of exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the business of
the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate
<PAGE> 5
or interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee,trustee in bankruptcy, receiver,
<PAGE> 6
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the Corporation
upon such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such investments to
issue bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held or
owned by the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real and personal property of any name
and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities of
any person, firm, association or corporation, and to pay for the
same in cash, stock of this Corporation, bonds or otherwise; to hold
or in any manner to dispose of the whole or any part of the property
so purchased; to conduct in any lawful manner the whole or any part
of any business so acquired, and to exercise all the powers
necessary or convenient in and about the conduct and management of
such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
<PAGE> 7
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing,
the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
<PAGE> 8
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such
dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the provisions
of section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions of
section (b) of this Article FOURTH, then and not otherwise the holders
of Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to receive all of
the remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
<PAGE> 9
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
<PAGE> 10
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors constituting
the whole Board permits, with the term of office of one class expiring
each year. At the annual meeting of stockholders in 1982, directors of
the first class shall be elected to hold office for a term expiring at
the next succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second succeeding
annual meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting. Any
vacancies in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
<PAGE> 11
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General Corporation
Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may exercise
all of the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and shall have power to
authorize the seal of the Corporation to be affixed to all papers which
may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated
by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
<PAGE> 12
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose
of this Article FIFTEENTH as one class ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that some lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A)through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be
applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required By
law and any other provisions of the Charter or Act of Incorporation of
By-Laws if such business combination has been approved by a majority of
the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
<PAGE> 13
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary)who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share
of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or
indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31,1981) is owned, directly or
<PAGE> 14
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares eneficially owned by any
person (2) whether a person is an Affiliate or Associate of another,
(3) whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: - Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: - (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
<PAGE> 15
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
<PAGE> 16
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
<PAGE> 17
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 18
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members
and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
<PAGE> 19
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of
the Board.
<PAGE> 20
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the
Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with
the exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
<PAGE> 21
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
<PAGE> 22
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
<PAGE> 23
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that
the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director or officer
to repay all amounts advanced if it should be ultimately determined that the
Director or officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
<PAGE> 24
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/ James P. Lawler
-------------------
Name: James P. Lawler
Title: Vice President
<PAGE>
<PAGE> 25
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------ ----------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
--------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . $ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements
to resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . $4,167,235
LESS: Allowance for loan and lease losses . . . . . 66,897
LESS: Allocated transfer risk reserve . . . . . . . 0
----------
Loans and leases, net of unearned income, allowance, and
reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies. 1,052
Customers' liability to this bank on acceptances outstanding . . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 26
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . .$4,474,659
Noninterest-bearing. . . . . . . . . . . . . . . . . $1,037,549
Interest-bearing . . . . . . . . . . . . . . . . . . .3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 90,951
----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,863
----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . 471,745
----------
Total liabilities, limited-life preferred stock, and equity
capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
<PAGE> 1
EXHIBIT 25.5
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
LOUIS DREYFUS NATURAL GAS TRUST II
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Trust II Preferred Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 21st
day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
------------------------ -------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for money, to
buy gold and silver bullion and foreign coins, to buy and sell bills
of exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the business of
the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate
<PAGE> 5
or interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
<PAGE> 6
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other ecurities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the Corporation
upon such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such investments;
to issue bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held or
owned by the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real and personal property of any name
and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities of
any person, firm, association or corporation, and to pay for the
same in cash, stock of this Corporation, bonds or otherwise; to hold
or in any manner to dispose of the whole or any part of the property
so purchased; to conduct in any lawful manner the whole or any part
of any business so acquired, and to exercise all the powers
necessary or convenient in and about the conduct and management of
such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
<PAGE> 7
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph)be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing,
the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
<PAGE> 8
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such
dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the provisions
of section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the provisions
of section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions of
section (b) of this Article FOURTH, then and not otherwise the holders of
Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed the holders of Preferred Stock in
the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of
the remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
<PAGE> 9
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class
or series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such
persons, firms, corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
<PAGE> 10
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors constituting
the whole Board permits, with the term of office of one class expiring
each year. At the annual meeting of stockholders in 1982, directors of
the first class shall be elected to hold office for a term expiring at
the next succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second succeeding
annual meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting. Any
vacancies in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the
term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
<PAGE> 11
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General Corporation
Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company, shall have
and may exercise all of the powers of the Board of Directors in
the management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to all
papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of
the State of Delaware at such places as may be from time to time
designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
<PAGE> 12
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose
of this Article FIFTEENTH as one class ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that no vote
may be required, orthat some lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be
applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation of
By-Laws if such business combination has been approved by a majority of
the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
<PAGE> 13
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share
of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or
indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
<PAGE> 14
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
<PAGE> 15
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 16
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forthin the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
<PAGE> 17
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 18
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
<PAGE> 19
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters
pertainingto auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of
the Board.
<PAGE> 20
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
<PAGE> 21
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
<PAGE> 22
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
<PAGE> 23
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that the payment of expenses incurred by a Director officer in his
- -------
capacity as a Director or officer in advance of the final disposition of
theproceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
<PAGE> 24
of the Board of Directors then in office.
<PAGE>
<PAGE> 25
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/ James P. Lawler
------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 26
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------ -------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1998.
--------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . $ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements
to resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . .$4,167,235
LESS: Allowance for loan and lease losses . . . 66,897
LESS: Allocated transfer risk reserve . . . . . 0
----------
Loans and leases, net of unearned income, allowance, and
reserve. . . . . . . . . . . . . . . . . . . . . . . . . . 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies 1,052
Customers' liability to this bank on acceptances outstanding . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,044,359
==========
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 27
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . .$4,474,659
Noninterest-bearing. . . . . . . . . . . . . . .$1,037,549
Interest-bearing . . . . . . . . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 90,951
----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,863
----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . 471,745
----------
Total liabilities, limited-life preferred stock, and
equity capital . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
<PAGE> 1
EXHIBIT 25.5
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
LOUIS DREYFUS NATURAL GAS TRUST II
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Trust II Preferred Securities
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 21st
day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
------------------------ -------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of the United
States or of this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities for money, to
buy gold and silver bullion and foreign coins, to buy and sell bills
of exchange, and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the business of
the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate
<PAGE> 5
or interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
<PAGE> 6
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other ecurities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the Corporation
upon such securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such investments;
to issue bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held or
owned by the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real and personal property of any name
and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities of
any person, firm, association or corporation, and to pay for the
same in cash, stock of this Corporation, bonds or otherwise; to hold
or in any manner to dispose of the whole or any part of the property
so purchased; to conduct in any lawful manner the whole or any part
of any business so acquired, and to exercise all the powers
necessary or convenient in and about the conduct and management of
such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
<PAGE> 7
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph)be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing,
the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
<PAGE> 8
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such
dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the provisions
of section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the provisions
of section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions of
section (b) of this Article FOURTH, then and not otherwise the holders of
Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed the holders of Preferred Stock in
the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of
the remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
<PAGE> 9
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class
or series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such
persons, firms, corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
<PAGE> 10
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors constituting
the whole Board permits, with the term of office of one class expiring
each year. At the annual meeting of stockholders in 1982, directors of
the first class shall be elected to hold office for a term expiring at
the next succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second succeeding
annual meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting. Any
vacancies in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the
term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
<PAGE> 11
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General Corporation
Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company, shall have
and may exercise all of the powers of the Board of Directors in
the management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to all
papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this
purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of
the State of Delaware at such places as may be from time to time
designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
<PAGE> 12
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose
of this Article FIFTEENTH as one class ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that no vote
may be required, orthat some lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be
applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation of
By-Laws if such business combination has been approved by a majority of
the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
<PAGE> 13
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share
of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or
indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
<PAGE> 14
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
<PAGE> 15
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
<PAGE> 16
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forthin the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
<PAGE> 17
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 18
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
<PAGE> 19
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters
pertainingto auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of
the Board.
<PAGE> 20
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
<PAGE> 21
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
<PAGE> 22
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
<PAGE> 23
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that the payment of expenses incurred by a Director officer in his
- -------
capacity as a Director or officer in advance of the final disposition of
theproceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified
under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
<PAGE> 24
of the Board of Directors then in office.
<PAGE> 25
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/ James P. Lawler
------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 26
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------ -------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1998.
--------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . $ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements
to resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . .$4,167,235
LESS: Allowance for loan and lease losses . . . 66,897
LESS: Allocated transfer risk reserve . . . . . 0
----------
Loans and leases, net of unearned income, allowance, and
reserve. . . . . . . . . . . . . . . . . . . . . . . . . . 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies 1,052
Customers' liability to this bank on acceptances outstanding . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,044,359
==========
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 27
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . .$4,474,659
Noninterest-bearing. . . . . . . . . . . . . . .$1,037,549
Interest-bearing . . . . . . . . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 90,951
----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,863
----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . 471,745
----------
Total liabilities, limited-life preferred stock, and
equity capital . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
<PAGE> 1
EXHIBIT 25.6
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Guarantee of Preferred Securities
of Louis Dreyfus Natural Gas Trust I
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a
corporation organized and existing under the laws of Delaware, has
duly caused this Statement of Eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of
Wilmington and State of Delaware on the 21st day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
------------------------------- ----------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE>
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is Wilmington Trust Company.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City.
In addition to such principal office, the said corporation
maintains and operates branch offices in the City of Newark, New
Castle County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle
County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware
Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized from
time to time by the agency or agencies of the government of the
State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate and
property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws
not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes
or other evidences of debt, to receive deposits of money,
or securities for money, to buy gold and silver bullion
and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a
corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
<PAGE> 5
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute
all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or
in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered
in any court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity in the receiving,
<PAGE> 6
holding, managing, and disposing of any and all estates
and property, real, personal or mixed, and to be appointed
as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or
elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be
required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of
the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property, any and all the rights, powers and
privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with any
of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from
time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate
business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer,
pledge, mortgage and convey real and personal property of
any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
<PAGE> 7
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property
so purchased; to conduct in any lawful manner the whole or
any part of any business so acquired, and to exercise all
the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any
of its operations and businesses, without restriction to
the same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or
any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects,
purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
<PAGE> 8
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but without
limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the
same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may be
redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the
Corporation if there shall have been a default in the
payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such
conditions as the Board of Directors may determine.
<PAGE> 9
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article Fourth), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
Fourth), and subject further to any conditions which may be fixed
in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall
be entitled to receive such dividends as may be declared from time
to time by the Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions
of section (b) of this Article Fourth), to be distributed
to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for
distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of
any increase of the authorized capital stock of the Corporation of
any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable
for stock of the Corporation of any class or series, or carrying
any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class
or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors
of any other series of Preferred Stock whether or not the powers,
<PAGE> 10
preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock
adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any or
all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term
of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
<PAGE> 11
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned by
each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
<PAGE> 12
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of
the Company outside of the State of Delaware at such places as may
be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter
defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such
merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of related transactions)
to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary
having an aggregate fair market value of
$1,000,000 or more, or
(C) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or a
series of related transactions) of any
securities of the Corporation or any Subsidiary
to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for
cash, securities or other property (or a
combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
<PAGE> 13
(D) the adoption of any plan or proposal for
the liquidation or dissolution of the
Corporation, or
(E) any reclassification of securities
(including any reverse stock split), or
recapitalization of the Corporation, or any
merger or consolidation of the Corporation with
any of its Subsidiaries or any similar
transaction (whether or not with or into or
otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of
increasing the proportionate share of the
outstanding shares of any class of equity or
convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned
by any Interested Stockholder, or any Affiliate
of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as
is required by law and any other provisions of the Charter or Act
of Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm,
corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of
any business combination, any person (other than the
Corporation or any Subsidiary) who or which as of the
record date for the determination of stockholders entitled
to notice of and to vote on such business combination, or
immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or
indirectly, of more than 10% of the Voting
Shares, or
(B) is an Affiliate of the Corporation and at
any time within two years prior thereto was the
beneficial owner, directly or indirectly, of not
less than 10% of the then outstanding voting
Shares, or
<PAGE> 14
(C) is an assignee of or has otherwise
succeeded in any share of capital stock of the
Corporation which were at any time within two
years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or
succession shall have occurred in the course of
a transaction or series of transactions not
involving a public offering within the meaning
of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any
Voting Shares:
(A) which such person or any of its Affiliates
and Associates (as hereafter defined)
beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates
or Associates has (i) the right to acquire
(whether such right is exercisable immediately
or only after the passage of time), pursuant to
any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or
(ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such
first mentioned person or any of its Affiliates
or Associates has any agreement, arrangement or
understanding for the purpose of acquiring,
holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares
deemed owned through application of paragraph (3) above
but shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in
Rule 3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of
the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary"
shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly,
by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
<PAGE> 15
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities
by the Corporation, or any Subsidiary has an aggregate fair market
value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except to the extent
such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
<PAGE>
<PAGE> 16
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 17
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
<PAGE> 18
place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 19
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the
Company by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
<PAGE> 20
Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
<PAGE> 21
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure
of the Board.
<PAGE> 22
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
<PAGE> 23
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
<PAGE> 24
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
<PAGE> 25
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses underapplicable law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
<PAGE> 26
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/James P. Lawler
------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 27
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
--------------------------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
------------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . .$ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under
agreements to resell. . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . .$4,167,235
LESS: Allowance for loan and lease losses . . . . . . 66,897
LESS: Allocated transfer risk reserve . . . . . . . . 0
----------
Loans and leases, net of unearned income,
allowance, and reserve. . . . . . . . . . . . . . . . . . . . . . 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and
associated companies. . . . . . . . . . . . . . . . . . . . . . . . 1,052
Customers' liability to this bank on acceptances outstanding . . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE> 27
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . .$4,474,659
Noninterest-bearing . . . . . . . . . . . . . . . .$1,037,549
Interest-bearing . . . . . . . . . . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under
agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 90,951
----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . . . . . . . . . 5,863
----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . 471,745
----------
Total liabilities, limited-life preferred stock,
and equity capital. . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
<PAGE> 1
EXHIBIT 25.7
Registration No. 333-21321
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
LOUIS DREYFUS NATURAL GAS CORP.
(Exact name of obligor as specified in its charter)
Oklahoma 73-1098614
(State of incorporation) (I.R.S. employer identification no.)
14000 Quail Springs Parkway, Suite 600
Oklahoma City, Oklahoma 73134
(Address of principal executive offices) (Zip Code)
Louis Dreyfus Natural Gas Corp. Guarantee of Preferred Securities
of Louis Dreyfus Natural Gas Trust II
(Title of the indenture securities)
==============================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of Delaware
on the 21st day of May, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ James P. Lawler
------------------------- ---------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such
officers and agents as the business of the Corporation shall
require, to make by-laws not inconsistent with the Constitution or
laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and foreign
coins, to buy and sell bills of exchange, and generally to use,
exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate
or interests therein, and to guarantee the holder of such property,
<PAGE> 5
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private,
and to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be agreed
upon between the two parties, and in like manner may act as
Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places
of responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not be
<PAGE> 6
required to give bond with surety, but its capital stock shall be
taken and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of
the duties which it may undertake or be called upon to perform, or
for the assumption of any responsibility the said Corporation may
be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any of
the bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right to
vote thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as it may
think fit and proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges or deeds
of trust or mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and
in the promotion of its said corporate business of investment and
to the extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and personal
property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities
of any person, firm, association or corporation, and to pay for the
same in cash, stock of this Corporation, bonds or otherwise; to
hold or in any manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner the whole or
any part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and,
without limit as to amount, to draw, make, accept, endorse,
<PAGE> 7
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent
as natural persons might or could do, to purchase or otherwise
acquire, to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class and
description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing,
the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes,
<PAGE> 8
or series of the same or other class of stock and whether such
dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any
other class or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of Directors
may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the provisions
of section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions of
section (b) of this Article fourth, then and not otherwise the holders
of Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred
Stock in the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be entitled to
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by
the Board of Directors pursuant to section (b) of this Article
FOURTH, each holder of Common Stock shall have one vote in respect
of each share of Common Stock held on all matters voted upon by the
stockholders.
<PAGE> 9
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article FOURTH and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
references and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the
whole Board, provided, however, that the number of directors shall not
be reduced so as to shorten the term of any director at the time in
office, and provided further, that the number of directors constituting
the whole Board shall be twenty-four until otherwise fixed by a majority
of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
<PAGE> 10
early equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for a
term expiring at the next succeeding annual meeting, directors of the
second class shall be elected to hold office for a term expiring at the
second succeeding annual meeting and directors of the third class shall
be elected to hold office for a term expiring at the third succeeding
annual meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a majority
of the directors then in office, although less than a quorum, and any
directors so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a successor
to such director to hold office until the next election of the class for
which such director shall have been chosen and until his successor shall
be elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
<PAGE> 11
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General Corporation
Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may exercise
all of the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and shall have power to
authorize the seal of the Corporation to be affixed to all papers which
may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated
by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
<PAGE> 12
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any similar transaction (whether or not
with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares
of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any one
or more of clauses (A) through (E) of paragraph 1 of the section
(a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be
applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by law and
any other provisions of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such business combination, or immediately prior to the consummation
of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
<PAGE> 13
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or succession
shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (I) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and
regulations under the Securities Exchange Act of 1934, as in effect
on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article Fifteenth on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value
of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
<PAGE> 14
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
<PAGE> 15
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 16
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting,
<PAGE> 17
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
<PAGE> 18
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two
available members of the Executive Committee as constituted immediately prior
to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
<PAGE> 19
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
andpromptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board
of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
<PAGE> 20
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and
direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
<PAGE> 21
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the
transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of theAudit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
<PAGE> 22
thereof, or entitled to receive payment of any dividend, or to any allotment
or rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
<PAGE> 23
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that
-------- -------
the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director or officer
to repay all amounts advanced if it should be ultimately determined that the
Director or officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitle
d to the requested indemnification of payment of expenses under applicable
law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
<PAGE> 24
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon requests
therefor.
WILMINGTON TRUST COMPANY
Dated: May 21, 1999 By: /s/ James P. Lawler
-----------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 25
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
<TABLE>
<CAPTION>
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------------------------------- ----------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
--------
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . .$ 194,839
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . 73,911
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . 1,228,194
Federal funds sold and securities purchased under agreements
to resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . .$4,167,235
LESS: Allowance for loan and lease losses . . . . 66,897
LESS: Allocated transfer risk reserve . . . . . . 0
----------
Loans and leases, net of unearned income,
allowance, and reserve. . . . . . . . . . . . . . . . . . . 4,100,338
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . 139,079
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . 1,532
Investments in unconsolidated subsidiaries and associated companies. 1,052
Customers' liability to this bank on acceptances outstanding . . . . 0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . 3,047
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,867
----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE> 26
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . .$4,474,659
Noninterest-bearing. . . . . . . . . . . . . . . .$1,037,549
Interest-bearing . . . . . . . . . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under
agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . 390,060
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 18,944
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 555,000
With original maturity of more than one year . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . 0
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . 90,951
----------
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 5,572,614
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . 403,264
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,863
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . 471,745
----------
Total liabilities, limited-life preferred stock, and
equity capital . . . . . . . . . . . . . . . . . . . . . . . . . .$6,044,359
==========
</TABLE>
